BOGARDUS  vs.  TRINITY  CHURCH. 


OPINION 

OF  THE 

HON.  LEWIS  H.  SANDFORD, 

VICE-CHANCELLOR  OF  THE  FIRST  CIRCUIT  OF  THE  STATE  OF  NEW  YORK, 

IN  THE  CASE  OF 

NATHANIEL  BOGARDUS  AND  OTHERS, 

vs. 

THE  RECTOR,  CHURCH- WARDENS,  AND  VESTRYMEN 

OF 

TRINITY  CHURCH, 

IN  THE  CITY  OF  NEW  YORK,  AND  OTHERS. 

DELIVERED  UPON 

THE  MAKING  OF  HIS  DECREE  IN  THE  CAUSE,  JUNE  28,  1847. 


NEW  YORK: 

HARPER  &  BROTHERS,  PUBLISHERS, 
82  CLIFF  STREET. 

1847. 


/ 


SEYMOUR  DURST 


When  you  leave,  please  leave  this  hook 

Because  it  has  heen  said 
"Ever  thing  comes  t'  him  who  waits 

Except  a  loaned  hook." 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


ADVERTISEMENT. 


George  Sullivan  has  published  a  statement  respecting  the  title 
of  Trinity  Church  to  the  lands  in  the  city  of  New- York,  called 
the  Church  Farm  ;  and  the  rights  of  the  heirs  of  Anneke  Jans  to 
some  portion  of  it.  Lest  any  one  may  suppose  that  such  statement 
contains  the  facts  in  the  case,  and  correct  conclusions  thereon,  and 
be  thereby  deluded  into  expenditures  for  the  prosecution  of  their 
imagined  rights,  it  would  be  well  to  inquire  what  can  be  the  motive 
of  counsel  for  agitating  again  this  matter  :  and  what  arc  represented 
to  be  the  facts  by  the  other  side.  The  members  of  the  Legislature, 
and  all  other  persons  who  take  any  interest  in  the  question,  are  re- 
ferred to  the  accompanying  pamphlets,  being  Vice-Chancellor  (now 
Judge)  Sandford's  opinion,  delivered  on  giving  judgment  in  the  suit 
of  Bogardus  vs.  Trinity  Church,  (4th  Sandford's  Chancery  Rep., 
p.  633,)  and  the  Report  of  the  Commissioners  of  the  Land  Office, 
made  to  the  Legislature  in  1836,  (Assembly  Documents,  183G,  No. 
321.)  Reference  is  also  made  to  the  case  of  Humbert  vs.  Trinity 
Church,  (7th  Paige,  193,  and  upon  appeal  before  the  Court  of  Er- 
rors, 24th  Wendell's  Reports,  587.)  Senator  Furman  in  delivering 
his  opinion  in  this  last  case  (see  24th  Wendell's  Rep.,  p.  619)  throws 
at  least  reasonable  doubts  upon  the  question  whether  the  Dominie's 
Hook  claimed  by  the  heirs  of  Anneke  Jans  Bogardus,  were  situated 
anywhere  upon  Manhattan  Island. 

January  23,  1851. 


Digitized  by  the  Internet  Archive 
in  2013 


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BOGARDUS  vs.  TRINITY  CHURCH. 


OPINION 

OF  THE 

HON.  LEWIS  H.  SANDFORD, 

VICE-CHANCELLOR  OF  THE  FIRST  CIRCUIT  OF  THE  STATE  OF  NEW  YORK 
IN  THE  CASE  OF 

NATHANIEL  BOGARDUS  AND  OTHERS, 

vs. 

THE  RECTOR,  CHURCH-WARDENS,  AND  VESTRYMEN 

OF 

TRINITY  CHURCH, 

IN  THE  CITY  OF  NEW  YORK,  AND  OTHERS. 

DELIVERED  UPON 

THE  MAKING  OF  HIS  DECREE  IN  THE  CAUSE,  JUNE  28,  1847. 


NEW  YORK: 
HARPER  &  BROTHERS,  PUBLISHERS, 

82  CLIFF  STREET. 

1  8  47. 


Entered,  according  to  Act  of  Congress,  in  the  year  one  thousand 
eight  hundred  and  forty-seven,  by 

Harper  &  Brothers, 

in  the  Clerk's  Office  of  the  District  Court  of  the  Southern  District 
of  New  York. 


OPINION. 


In  Chancery, 

Nathaniel  Bogardus  and  others, 
vs. 

The  Rectors,  Church-wardens,  and 
Vestrymen  of  Trinity  Church,  in 
the  City  of  New  York,  and  others. 

Messrs.  G.  R.  J.  Bowdoin,  J.  T.  Brady,  and  G.  Sullivan, 

for  Complainants. 
Messrs.  W.  E.  Dunscomb,  B.  F.  Butler,  and  D.  B.  Ogden, 

for  Defendants. 

The  Vice-chancellor, — 

The  complainants,  by  their  bill,  claim  that  they,  as  heirs  of 
John  Bogardus,  are  the  owners  in  fee  of  an  equal,  undivided 
thirtieth  of  the  northern  and  principal  portion  of  the  property  in 
the  City  of  New  York,  long  known  as  the  "  Church  Farm." 
This  part,  said  to  contain  sixty-two  acres,  extended  from  a 
line  about  one  hundred  feet  south  of  what  is  now  Warren- 
street,  northwardly  to  what  is  now  known  as  Christopher- 
street,  and  from  the  Hudson  River,  on  the  west,  to  what  is  now 
Broadway,  at  its  south  line,  and  along  the  line  of  Broadway 
nearly  to  Duane-street ;  and  from  thence  its  eastern  boundary 
ran  northwestwardly,  gradually  approaching  the  river  at  its 
northern  extremity. 

The  bill  proceeds  on  the  ground  that  the  corporation  of 
Trinity  Church,  from  1705  to  the  present  time,  have  been  in 
the  possession  of  this  portion  of  the  farm,  as  tenants  in  com- 
mon with  the  complainants  and  their  ancestors,  from  whom 
they  derive  their  title ;  and  that  the  corporation  is  bound  to 
account  to  them  for  their  proper  share  of  the  rents  and  issues 
received  from  the  farm,  and  from  sales  of  such  portions  as 
have  been  sold,  and  to  refrain  from  any  further  leases  or  sales 
affecting  the  complainants'  title. 

The  defence  interposed  to  this  claim  is,  that  in  1705,  Queen 
Anne  granted  the  whole  Church  Farm  to  the  corporation  of 
Trinity  Church  in  fee-simple ;  that  the  Church  then  entered 


4 


into  possession,  and  has  ever  since  been  in  the  sole  possession, 
exclusive  of  any  other  right,  claiming  it  absolutely  as  its  own 
property.  In  other  words,  the  defendants  plead  an  adverse 
possession  of  the  lands  claimed,  for  one  hundred  and  twenty- 
five  years  before  this  suit  was  commenced,  under  a  deed  con- 
veying the  lands  to  them  in  fee-simple. 

The  highest  judicial  tribunal  in  the  state,  affirming  the  elab- 
orate judgment  of  the  chancellor,  has.  decided  that  the  defence 
thus  interposed  is  valid,  and  a  perfect  bar  to  the  complainants' 
suit.  (See  the  report  of  this  case,  on  the  argument  of  the  plea 
before  Chancellor  Walworth,  in  4  Paige's  Rep.  178  ;  and  in  the 
Court  for  the  Correction  of  Errors,  in  15  Wendell's  Rep.  111.) 

The  law,  as  to  the  force  and  effect  of  the  plea,  is  thus  estab- 
lished in  the  outset ;  and  the  great  question  before  me  is  pre- 
sented in  the  simple  proposition,  Is  the  plea  true  in  point  of fact  ? 
In  determining  the  question,  I  am  confined  to  the  truth  of  the 
matters  stated  in  the  plea.  Those  alone  are  in  issue  between 
the  parties ;  and  the  statements  in  the  bill,  and  in  the  answer 
accompanying  the  plea,  are  unimportant,  except  so  far  as  they 
may  tend  to  disprove  or  establish  those  contained  in  the  plea. 

Before  proceeding  to  those  allegations,  I  will  speak  of  cer- 
tain facts  which  are  admitted  to  be  true  by  the  form  of  the 
pleadings,  and  which  the  complainants  insist  have  an  import- 
ant bearing  upon  the  defence.  Thus  it  is  admitted  that  the 
"  Dominie's  Bowery,"  constituting  the  part  of  the  Church  Farm 
before  described,  was,  on  the  27th  of  March,  1667,  granted 
and  confirmed  in  fee,  by  Governor  Nicolls,  to  the  children  and 
heirs  of  Anneke  Jans,  the  widow  of  Dominie  Everardus  Bo- 
gardus, which  confirmation  recited  a  grant  of  the  same  land 
by  the  Dutch  Governor,  Van  Twiller,  to  Anneke  Jans  and  her 
husband,  Roelofe  Jansen,  in  1636,  and  a  patent  or  ground  brief 
to  Anneke  Jans,  from  Governor  Stuyvesant,  in  1654.  It  is  in 
like  manner  admitted  that  Anna  or  Anneke  Jans  Bogardus  had 
eight  children,  who  were  either  living  at  her  death  or  had 
died  leaving  issue  ;  and  that,  by  the  subsequent  deaths  of  two 
of  her  children  without  issue,  Cornelius  Bogardus,  one  of  her 
sons,  became  seized  of  one  sixth  of  the  Dominie's  Bowery  ; 
that  his  right  descended,  on  his  death  in  1707,  to  his  eldest  son, 
Cornelius  ;  from  the  latter  to  his  eldest  son,  Cornelius,  in  1759  ; 
and  from  the  latter,  on  his  death,  in  1794,  to  his  five  children, 
of  whom  John  Bogardus,  the  complainant's  father,  was  one. 

It  is  also  admitted  that,  on  the  9th  of  March,  1670-71,  some 


5 


of  the  heirs  of  Anneke  Jans,  executed  a  conveyance  in  fee  of 
the  Dominie's  Bowery,  described  as  containing  about  sixty-two 
acres,  to  Col.  Francis  Lovelace,  who  was  then  the  Governor 
of  the  Province  of  New  York.  This  transfer  purports  to  have 
been  made  by  William  Bogardus,  for  himself  and  his  brothers, 
Jan  and  Jonas,  and  by  two  of  the  sons-in-law  of  Anneke  Jans, 
one  in  the  right  of  his  wTife,  and  as  attorney  of  another  son-in- 
law,  whose  wife  was  deceased,  and  the  other  in  right  of  his 
wife  and  by  assignment  of  one  of  the  sons,  Peter  Bogardus. 
It  does  not  appear  to  have  been  executed  by  or  for  Cornelius 
Bogardus,  the  son  of  Anneke  Jans ;  but  it  describes  the  whole 
farm  or  bowery,"  and  speaks  of  it  as  the  farm  or  bowery  of  the 
grantors. 

This  deed  or  transport  appears  to  have  been  recorded,  but 
at  what  time  is  not  shown,  otherwise  than  that  it  is  found  in  a 
Book  of  Transports  begun  in  the  year  1665. 

Several  other  matters  charged  in  the  bill,  which  are  to  be 
taken  as  true  on  this  hearing,  will  be  more  conveniently  men- 
tioned in  connection  with  the  various  points  upon  which  they 
are  supposed  to  have  an  influence. 

The  plea,  formally  stated,  contains  the  three  following  heads 
or  propositions,  viz. : 

First.  That  Queen  Anne,  being  in  the  possession  and  occu- 
pation of  the  tract  known  by  the  name  of  the  Duke's  Farm, 
King's  Farm,  or  Queen's  Farm,  referred  to  in  the  bill,  and  of 
which  the  Dominie's  Bowery  is  parcel,  and  being  in  the  receipt 
of  the  rents  and  profits  thereof  to  her  own  sole  and  separate 
use  and  benefit,  did  by  letters  patent  under  the  great  seal  of 
the  Province,  dated  November  23d,  1705,  give,  grant,  ratify, 
and  confirm  to  the  corporation  of  Trinity  Church,  in  fee-simple, 
the  farm  before  mentioned,  reserving  a  yearly  rent  of  three 
shillings,  New  York  currency,  in  lieu  of  all  other  services,  dues, 
and  demands. 

Second.  That  the  corporation  of  Trinity  Church,  on  the  day 
of  the  date  of  the  letters  patent,  entered  upon  and  became  seized 
in  their  demesne  as  of  fee  of  and  in  the  farm  including  the  Do- 
minie's Bowery,  claiming,  by  force  of  the  letters  patent,  and  not 
otherwise,  to  be  of  right  sole  and  exclusive  owners  of  the  same 
and  of  every  part  thereof  in  fee- simple. 

Third.  That  by  themselves  and  those  claiming  under  them 
they  have,  from  the  day  of  such  entry,  continually,  down  to  the 
present  time,  been  in  the  uninterrupted,  sole,  exclusive,  and 


6 


actual  seizin  and  possession  of  the  premises  called  the  Domi- 
nie's Bowery  and  of  every  part  thereof,  claiming  the  same  as 
sole  and  exclusive  owners  in  fee  ;  and  have  been  in  the  sole  and 
exclusive  receipt  and  enjoyment  of  the  rents,  issues,  and  profits, 
to  their  own  sole  and  separate  use  and  benefit,  without  having 
paid  over  or  accounted  for  any  part  of  the  same  to  the  com- 
plainants, or  to  any  person  under  whom  they  claim,  and  with- 
out at  any  time  having  held  or  possessed  any  part  of  the  prem- 
ises, or  any  rents  or  profits  therefrom,  or  any  estate  or  interest 
therein,  in  common  and  undivided  with  or  as  trustee  of  the 
complainants,  or  of  any  person  under  whom  they  claim  to  de- 
rive title,  and  without  ever  having  admitted  or  acknowledged, 
that  the  complainants,  or  any  person  under  whom  they  claim, 
were  entitled  to  any  payment  or  account,  or  had  any  estate, 
share  or  interest,  in  common  or  undivided,  in  the  premises  in 
controversy. 

These  three  fundamental  propositions  will  be  treated  separ- 
ately, and  in  their  order. 

I.  The  sole  possession  of  Queen  Anne,  and  her  grant  to  the 
defendants'  corporation  on  the  23d  day  of  November,  1705. 

It  is  to  be  observed,  that  the  plea  does  not  assert  that  the 
Queen  was  the  owner  of  the  farm  granted,  or  that  she  had  any 
estate  or  title  whatever.  The  averment  relates  exclusively  to 
her  possession  and  its  character. 

These  are  facts  of  which  written  evidence  can  scarcely  be 
expected.  Such  testimony  rarely  exists  in  any  case.  And 
after  the  lapse  of  more  than  one  hundred  and  forty  years,  not 
only  is  the  testimony  of  living  witnesses  to  such  facts  utterly 
impossible,  but  even  oral  tradition  respecting  them  has  almost 
invariably  faded  away  in  the  dim  shadows  of  the  past. 

In  their  search  for  truth,  the  courts  are  required,  in  instances 
like  the  one  under  consideration,  to  receive  evidence  which 
would  be  inadmissible  if  offered  respecting  events  occurring 
within  the  memory  of  living  witnesses.  Thus,  the  statements 
of  historians  of  established  merit,  the  recitals  in  public  records, 
in  statutes  and  legislative  journals,. the  proceedings  in  courts 
of  justice,  and  their  averments  and  results,  and  the  depositions 
of  witnesses  in  suits  or  in  legal  controversies,  are  from  neces- 
sity, received  as  evidence  of  facts  to  which  they  relate,  but  al- 
wavs  with  great  caution,  and  with  due  allowance  for  its  imper- 
fections and  its  capability  of  misleading ;  and  restricted,  as  to 


7 


historical  evidence,  to  facts  of  a  public  and  general  nature. 
(See,  on  this  subject,  Bullen  v.  Michel,  4  Dow's  Pari.  Cases, 
297,  323,  324.) 

There  is  the  more  reason  for  relying  upon  such  evidence, 
because,  on  a  question  of  the  possession  of  land  and  of  the 
character  of  the  claim,  the  acts  of  the  claimant  are  competent 
to  prove  the  occupation,  and  when  he  is  shown  to  be  in  pos- 
session, his  declarations  as  to  the  manner  of  his  holding  are  al- 
ways admissible,  either  against  him  to  establish  a  tenancy,  or 
in  his  favor  to  lay  the  foundation  of  an  adverse  possession. 
For  a  rule  of  evidence  so  familiar  in  actions  affecting  the  title 
to  lands,  it  is  unnecessary  to  refer  to  authorities. 

1.  To  proceed  to  the  possession  of  the  farm,  at  the  date  of 
the  letters  patent  to  Trinity  Church. 

The  bill  is  silent  as  to  the  possession  of  the  Dominie's  Bow- 
ery, as  well  as  the  whole  Duke's  Farm,  prior  to  1705.  It  con- 
tains no  allegation  that  Governor  Lovelace,  the  Duke  of  York 
as  proprietor  of  the  province,  or  any  other  person,  ever  entered 
under  the  deed  of  transport  to  Governor  Lovelace  ;  except  its 
charge  as  to  the  entry  of  the  corporation  of  Trinity  Church, 
which  will  be  noted  in  another  place.  If  any  legal  presumption 
as  to  the  possession  is  to  be  deduced  from  the  title  having  once 
been  in  Anneke  Jans,  and  from  the  cautious  statement  in  the  bill 
as  to  the  execution  and  effect  of  the  deed  of  transport  executed 
by  a  portion  of  her  children,  it  is  simply  this,  that  on  her  death 
her  children  succeeded  to  the  possession  in  point  of  law,  and  on 
the  execution  of  the  transport  Governor  Lovelace  succeeded 
to  that  possession,  at  least  to  the  extent  of  the  interests  of  those 
whose  title  it  assumed  to  grant.  And  as  it  assumed  to  convey 
the  whole  farm,  the  presumption  would  necessarily  be  that  he 
took  possession  of  the  whole,  claiming  it  under  the  deed,  unless 
he  knew,  (and  of  this  there  is  neither  proof  nor  probability),  that 
there  was  one  heir  of  Anneke  Jans  who  was  not  named  in  the 
instrument. 

In  Jackson,  ex  dem.  Preston  v.  Smith  (13  Johns.,  406),  where 
one  purchased  a  lot  of  land,  and  received  a  deed  for  the  whole 
lot,  in  which  the  grantor  was  described  as  heir  of  the  patentee, 
and  entered  into  possession  under  the  deed,  and  it  afterward 
appeared  that  the  grantor  was  only  one  of  nine  heirs  of  the 
patentee,  and  owned  only  one  ninth  of  the  lot  as  tenant  in  com- 
mon with  his  co-heirs,  it  was  decided  that  the  purchaser  must  be 


8 


deemed  to  have  entered  under  his  deed  as  sole  owner  in  fee  of 
the  whole  lot,  and  that  his  possession  was  adverse  to  the  right- 
ful owners,  and  was  not  a  possession  in  common  with  them. 

A  resort  to  legal  inferences  upon  the  admitted  facts  in  the  bill, 
therefore,  places  Governor  Lovelace  in  possession  of  this  prop- 
erty, claiming  the  whole  title  in  fee  under  a  deed,  as  early  as 
1671.  The  subsequent  transmission  of  his  right  and  possession 
to  the  Duke  of  York  as  proprietor,  was  so  perfectly  natural  and 
obvious,  that  the  counsel  on  both  sides  concurred  in  assuming  it 
as  unquestionable.  Governor  Lovelace's  administration  term- 
inated on  the  surrender  of  New  York  to  the  Dutch,  in  August, 
1673,  and  his  name  has  never  appeared  in  connection  with  the 
farm  from  that  day  to  the  present.  His  title  and  possession, 
(if  he  acquired  either,)  were  doubtless  taken  in  his  official  ca- 
pacity, and  vested  in  the  Duke  of  York.  They  continued  in 
the  latter,  as  duke,  and  then  as  King  James  II.,  till  the  English 
revolution,  by  which  he  was  dethroned  and  exiled,  and  then  with 
other  crown  and  proprietary  lands,  were  transmitted  to  William 
and  Mary,  and  on  the  death  of  William  III.,  to  Queen  Anne. 

Thus,  setting  out  with  the  title  of  Anneke  Jans,  and  the  trans- 
port to  Governor  Lovelace,  we  have  the  legal  presumption  that 
the  Dominie's  Bowery  was  possessed  from  1671  to  1705  by  the 
Duke  of  York,  and  the  sovereigns  of  England  continuously,  un- 
der a  claim  of  title  to  the  whole  of  it  by  deed,  exclusive  of  any 
other  right ;  and  that  at  the  date  of  the  letters  patent  Queen 
Anne  was  in  its  possession  and  occupation,  and  receiving  the 
rents  to  her  own  sole  use  and  benefit. 

Next,  dismissing  entirely  all  inferences  in  favor  of  the  Queen's 
exclusive  possession,  arising  from  the  transport  and  historical 
proofs  before  mentioned,  how  does  this  question  stand  upon  the 
evidence  at  large  ? 

It  is  proved  that  Governor  Andross,  who  arrived  in  the 
province  in  October,  1674,  leased,  or  assumed  to  lease,  the 
Duke's  Farm  to  David  Seekers,  or  Seckners,  for  twenty  years. 
This  is  shown  by  the  original  minutes  of  a  trial  in  the  Supreme 
Court  of  the  colony,  in  October,  1760,  in  a  suit  in  ejectment, 
relating  to  the  Church  Farm,  brought  against  the  corporation 
of  Trinity  Church  by  Cornelius  Brower  and  others.  The  rec- 
ord of  the  judgment  in  that  suit  is  also  produced.  The  minutes 
of  the  trial  show  that  the  respective  parties  read  in  evidence 
on  that  occasion  very  much  the  same  documentary  testimony 
as  the  parties  in  this  suit  presented  eighty-five  years  afterward. 


9 


Among  the  documents  then  read  in  evidence  by  the  Church,  was 
an  original  lease  from  Governor  Andross  to  Seekers,  as  before 
mentioned,  which,  in  tjie  minutes,  is  stated  to  bear  date  March 
25,  1G67,  or  1677.  The  third  figure  is  so  illegible  that  it  is 
read  with  difficulty,  but  it  looks  more  like  six  than  seven.  It 
was  manifestly  intended  to  be  entered  as  1677,  for  Col.  Nicolls 
was  governor  in  1667,  and  Governor  Andross  was  commis- 
sioned in  June,  1674.  The  original  lease  is  shown  to  be  lost, 
and  secondary  evidence  is  therefore  admissible. 

In  connection  with  the  minutes  of  the  trial,  the  defendants 
produce  two  affidavits,  one  of  Jacob  Kooning,  the  other  of 
Mary  Layton,  both  appearing  to  have  been  sworn  on  the  18th 
day  of  May,  1751,  before  Frederic  Philipse,  who  was  then  a 
judge  of  the  Supreme  Court,  and  whose  signatures  were  proved 
by  one  of  his  lineal  descendants.  The  purpose  for  which  these 
affidavits  were  taken  is  not  proved.  From  their  form  and  con- 
tents, it  may  be  inferred  that  they  were  provided  in  reference 
to  a  forcible  entry  and  detainer,  or  some  similar  proceeding, 
which  became  unnecessary  or  was  dropped.  Kooning,  in  his 
affidavit,  deposed  that  he  was  eighty-one  years  of  age,  and 
had  known  the  Church  Farm,  or  King's  Farm,  about  seventy 
years ;  that  sixty-five  or  seventy  years  before  the  time  of  his 
deposing,  Dirck  Sicken,  otherwise  called  Dirck  Dey,  lived  in 
an  old  thatched  house  on  that  farm,  and  after  his  death  his 
widow  possessed  the  farm,  and  then  their  son  Tunis.  He  fur- 
ther deposed  that  one  Joris  Ryerse  married  the  widow  of  Tu- 
nis, and  possessed  the  farm,  first  under  the  government,  and 
afterward  from  the  English  Church.  Mary  Layton  deposed 
that  she  was  eighty- four  years  of  age,  and  knew  the  facts  stated 
by  Kooning  to  be  true. 

The  question  being,  not  as  to  the  estate  or  title,  but  solely  as 
to  possession  and  the  accompanying  claim,  the  minutes  of  the 
trial  and  the  two  affidavits  appear  to  be  good  evidence  to  show 
that  Governor  Andross,  in  1677,  assumed  to  control  the  farm 
as  the  property  of  the  government,  and  to  demise  it  as  such*for 
twenty  years.  (4  Dow's  Cases  in  Pari.,  323,  324,  before  cited.) 
And,  in  a  matter  of  as  much  public  concern  and  notoriety  as 
the  demesnes  of  the  proprietor  and  of  the  crown,  which  formed 
the  subject,  within  a  few  years  thereafter,  of  constant  and  bit- 
ter controversy  and  frequent  legislation  in  the  Colonial  Assem- 
bly, these  documents  are  competent  to  prove,  at  this  remote 
period,  what  was  the  general  reputation  and  understanding  as 


10 


to  the  possession  and  the  claim  of  and  in  the  Duke's  Farm,  as 
well  as  the  assertion  of  the  claim  itself.  It  is  strongly  fortified 
and  corroborated  by  the  historical  evidence  hereafter  noticed. 

In  1686,  in  the  charter  granted  by  Governor  Dongan  to 
the  City  of  New  York,  the  farm  in  question  is  reserved  to  the 
crown,  and  is  described  as  the  "  land  without  the  gate,  called 
the  King's  Farm,"  the  Duke  of  York  having  succeeded  to  the 
throne  on  the  6th  of  February,  1685. 

This  was  a  direct  and  solemn  assertion  of  the  enjoyment  of 
the  possession  and  the  claim  of  the  title  by  the  government, 
which  was  unchallenged  at  the  time,  and  of  so  public  and  no- 
torious a  character,  that  it  leaves  no  room  for  doubt  as  to  their 
then  being  well  known  and  indisputable  facts. 

On  the  6th  of  August,  1694,  Governor  Fletcher,  in  the  name 
of  the  king,  granted  the  Swamp,  or  Fresh-water  Pond,  to  John 
Evans  ;  and  in  the  letters  patent  the  lands  granted  are  de- 
scribed, both  in  the  recital  and  in  the  grant,  among  other 
bounds,  as  being  "  adjacent  to  our  farm  commonly  called  and 
known  by  the  name  of  the  Duke's  Farm" 

This  is  another  solemn  public  act  of  the  government,  under 
the  great  seal  of  the  province,  asserting  a  claim  to  the  whole 
title  and  the  possession,  and  also  asserting  that  the  farm  was 
known  as  the  Duke's  Farm  ;  thus  connecting  the  claim  with 
the  duke's  ownership  before  1685,  and  showing  that  his  title 
had,  in  1685,  been  so  long  continued  and  so  notorious  as  to 
have  attached  his  name  to  the  property. 

Next  we  have  a  lease  executed  by  Governor  Fletcher,  in 
the  name  of  the  crown,  to  Trinity  Church,  for  the  identical 
farm  in  question,  designating  it  as  "  our  farm  called  and  known 
as  the  King's  Farm ;"  and  the  location  and  extent  of  the  prop- 
erty were  apparently  so  well  known  that  there  is  no  descrip- 
tion of  it  by  metes  or  bounds,  or  otherwise  than  as  the  King's 
Farm,  on  the  Island  of  Manhattan,  and  adjacent  to  the  City  of 
New  York.  The  lease  is  dated  August  19th,  1697,  was  for 
se^en  years  from  August  1st,  1698,  and  reserved  an  annual 
rent  of  sixty  bushels  of  wheat. 

Next  is  the  act  of  the  Colonial  Assembly,  passed  May  12th, 
1699,  "  for  the  breaking,  vacating,  and  annulling  several  ex- 
travagant grants  of  land  made  by  Colonel  Fletcher,  the  late 
governor  of  this  province  under  his  majesty."  Among  such 
grants  recited  in  the  act  is  that  to  John  Evans,  and  the  lands 
granted  are  described  as  "  adjacent  to  the  King's  Farm,  for- 


11 


merly  called  the  Duke's  Farm,  on  the  Island  of  Manhattans ;" 
and  Governor  Fletcher's  lease  to  Trinity  Church,  in  August, 
1G97,  is  also  called  "  an  extravagant  grant  of  the  King's  Farm." 
(1  Van  Schaack's  Colonial  Laws,  31.) 

This  statute  exhibits  in  the  strongest  light,  the  assumed  own- 
ership and  possession  of  the  farm  in  question  by  the  Duke  of 
York,  and  then  by  the  kings  of  England,  and  the  entire  pub- 
licity and  notoriety  of  such  title  and  possession.  The  legis- 
lature of  the  colony,  sitting  within  half  a  mile  of  the  King's 
Farm,  could  not  be  mistaken  as  to  these  facts,  when  they  were 
making  a  law  which  was  to  annul  the  late  governor's  demise 
of  the  farm,  and  to  regulate  its  future  tenure. 

In  this  connection,  it  may  be  mentioned  that  in  1732  the 
same  Swamp  or  fresh  water,  which  in  1694  was  granted  to 
Captain  Evans,  wTas  conveyed  by  Governor  Cosby  to  Anthony 
Rutgers,  by  letters  patent,  under  the  great  seal  of  the  prov- 
ince ;  and  the  grant  confirmed  by  like  letters  patent,  December 
31st,  1733.  In  both  of  these  instruments,  the  lands  are  granted 
as  "  adjacent  to  the  farm  formerly  called  the  King's  Farm." 
The  act  of  1699  was  so  far  repealed  by  the  Colonial  Assembly, 
on  the  1st  November,  1733,  as  to  permit  this  grant  to  Rutgers. 

On  the  9th  of  May,  1702,  Lord  Cornbury,  then  governor  of 
the  province,  executed  another  lease  of  the  King's  .Farm  to 
Trinity  Church,  conformably  to  the  act  of  1699,  to  continue 
from  May  1st,  1700,  so  long  as  he  should  remain  governor, 
describing  it  simply  as  the  King's  Farm,  without  any  specific 
boundaries  or  location. 

It  was  objected  to  this  document  that  it  was  not  signed  by 
Lord  Cornbury,  and  that  King  William,  in  whose  name  it  runs, 
was  dead  prior  to  its  execution.  As  to  the  first  objection,  the 
lease  is  attested  by  the  great  seal  of -the  province.  The  want 
of  the  governor's  signature  will  be  discussed  in  another  place. 
As  to  the  other,  it  was  a  maxim  of  the  common  law  that  the 
king  never  dies  ;  and  it  was  that  part  of  the  king  which  literal- 
ly never  dies,  the  sovereign  authority  exercised  by  the  viceroy 
or  governor,  whose  functions  continued,  although  the  person 
clothed  with  the  office  of  king  had  died  and  another  had  suc- 
ceeded, which  granted  the  lease  under  consideration.  If  it 
were  ever  questionable,  the  crown  never  did  question  it,  and  it 
could  not  be  collaterally  impeached.  A  further  and  conclu- 
sive answer  to  both  objections  is,  that  the  testimony  is  offered 
not  to  prove  title,  but  to  establish  the  existence  of  a  claim  of 


title  and  a  possession  accordingly  ;  so  that,  whether  voidable 
or  even  void,  the  lease  is  equally  competent  to  show  the  pub- 
lic affirmation  by  the  executive  of  the  province,  of  the  king's 
possession,  and  his  exclusive  right  to  the  farm. 

Next  is  the  counterpart  of  a  lease  of  the  farm  from  Trinity 
Church  to  George  Ryrse,  or  Ryerse,  sealed  by  the  latter  only, 
dated  January  24,  1704,  for  five  years  from  May  1st,  1704,  at 
an  annual  rent  of  £30  currency,  describing  the  premises  as 
"  all  he?*  said  majesty's  farm"  &c. 

It  was  objected  by  the  complainants'  counsel  to  this  lease, 
and  to  several  hundred  other  ancient  counterparts  of  leases 
executed  in  the  same  manner,  that  the  lease  executed  by  the 
corporation  should  be  produced,  and  that  the  counterparts 
were  only  secondary  evidence.  Without  entering  into  the 
learning  of  the  law  on  this  question  in  general,  it  suffices  to 
say,  that,  for  the  purpose  for  which  all  these  counterparts  were 
introduced,  they  were  primary  and  competent  evidence.  The 
idea  of  requiring  a  lessor  or  his  heirs,  in  order  to  prove  a  ten- 
ancy, to  produce  a  lease  which  one  hundred  and  forty  years 
ago,  he  delivered  to  a  tenant  who  was  to  hold  for  only  five 
years,  when  his  interest  in  its  preservation  would  cease,  and 
whose  descendants  to  the  fourth  generation  are  probably  in 
their  graves,  and  those  of  the  fifth  scattered  throughout  the 
globe,  is  too  preposterous  for  argument.  The  object  of  the 
testimony  is  to  prove  a  holding  under  the  lessor.  The  fact 
that  Ryerse  was  in  possession  of  the  King's  Farm  about  the 
date  of  the  lease  is  unquestionable  ;  and  his  parol  declarations 
would  be  competent  to  prove  the  manner  of  his  holding.  Is 
not  his  declaration  in  wrriting,  under  seal,- infinitely  better  and 
stronger  evidence  ?  * 

Thus,  the  counterpart  jexecuted  by  Ryerse  in  1704,  when 
produced  by  the  corporation,  is  evidence  that  the  latter  as- 
sumed to  exercise  ownership  over  the  land,  and  reserved  the 
rent  to  be  paid  to  the  corporation  exclusively.  It  is  a,  sealed 
admission  by  Ryerse,  concluding  him  as  to  their  right,  and 
produced  by  the  corporation,  concludes  them  as  to  the  exist- 
ence of  the  demise.  And,  collaterally,  it  establishes  their  claim 
of  title,  and  their  enforcing  it  upon  the  possession  of  the  land. 
The  counterpart  which  Ryerse  received,  executed  by  the  cor- 
poration, and  not  by  him,  if  produced  by  the  corporation,  would 
prove  nothing  whatever,  until  they  had  shown,  what  at  this  day 
is  impossible,  that  it  had  been  delivered  to  Ryerse  when  it  was 


\ 


13 


sealed.  (And  see  Lord  Rancliffe  v.  Parkins,  6  Dow's  Cases  in 
Pari.,  202,  per  Lord  Eldon.) 

The  letters  patent  to  the  Church  in  1705,  speak  of  the  farm 
thereby  granted  as  having  been  formerly  called  the  Dukes 
Farm  and  the  King's  Farm,  and  as  being  then  known  as  the 
Queen's  Farm,  and  describes  it  as  being  in  the  occupation  of 
George  Ryerse,  yeoman,  thereby  further  corroborating,  if  it 
were  necessary,  the  evidence  of  the  possession  and  claim  of 
the  crown  at  that  period. 

The  affidavits  of  Kooning  and  Layton  state  the  possession 
of  the  farm  by  Joris  Ryerse,  and  his  claiming  first  under  the 
government,  and  then  under  the  Church  ;  evidently  the  same 
person  as  George  Ryerse.  And  the  identity  is  proved  by  the 
signature  to  the  counterpart  being  Gooris  or  Jooris  Ryers,  while 
in  the  body  of  the  instrument  he  is  called  George.  ( 

In  determining  the  question  of  possession,  and  the  assertion 
of  title  at  this  remote  age,  the  historical  fact  that  the  farm  in 
question  was  publicly  and  notoriously  known  as  the  Duke's 
Farm  prior  to  1685,  as  the  King's  Farm  for  the  next  sixteen 
or  seventeen  years,  and  then  as  the  Queen's  Farm  until  its  con- 
veyance to  Trinity  Church,  is  justly  entitled  to  the  highest  con- 
sideration. That  it  was  cultivated  and  occupied,  is  not  ques- 
tioned; nor,  in  view  of  its  being  called  a  farm  in  1677,  and  its 
close  proximity  to  the  north  bounds  of  the  then  infant  but 
growing  city,  can  it  be  a  matter  of  doubt.  And  such  a  steady, 
uniform  designation  of  the  farm  could  not  have  been  so  pub- 
licly made  for  more  than  thirty  years,  unless  it  had  been  in 
the  control  and 'occupation  of  the  officers  of  the  government, 
claiming  it  for  their  sovereign.  In  Jackson  v.  Miller,  6  Wen- 
dell's R.,  228,  the  chancellor,  delivering  the  unanimous  opinion 
of  the  Court  for  the  Correction  of  Errors,  held  that  the  cir- 
cumstance of  a  particular  lot  in  a  large  tract  held  in  common, 
and  then  subdivided  into  lots,  being  always  called  and  known, 
for  thirty  or  forty  years,  by  the  name  of  one  of  the  joint  own- 
ers, furnished  a  just  inference  that  there  had  been  a  partition  of 
the  tract,  and  that  such  lot  had  fallen  to  the  share  of  the  person 
wrhose  name  it  bore,  there  being  no  evidence  of  any  claim  to 
hold  in  common  for  fifty  years  before  the  trial. 

Again,  in  Governor  Montgomerie's  great  charter  to  the  City 
of  New  York,  in  1730,  Governor  Dongan's  charter  is  recited 
in  haze  verba ;  and  in  the  thirty-seventh  section,  repeating  vari- 
ous grants  to  the  city,  the  exception  is  again  made,  as  it  was 


14 


in  1686,  of  "the  lands  called  the  King's  Farm"  This  charter 
was  confirmed  by  an  act  of  the  Colonial  Assembly,  passed  Oc- 
tober 14th,  1732. 

In  this  case  there  does  not  appear  to  be  a  particle  of  proof, 
or  a  circumstance  on  which  to  found  an  inference,  that  the  com- 
plainants' ancestor,  the  first  Cornelius  Bogardus,  was  ever  in 
possession  of  the  Dominie's  Bowery,  or  even  asserted  a  right 
to  it ;  or  that  his  right  or  claim  was  ever  recognized  by  any 
person,  in  possession  or  claiming  the  possession,  from  1671  to 
the  date  of  the  grant  to  Trinity  Church. 

So  far,  therefore,  it  is  conclusively  established  that  when 
the  farm  was  granted  to  Trinity  Church  the  Queen  was  in  the 
possession  and  occupation  of  the  Duke's  or  Queen's  Farm,  in- 
cluding the  Dominie's  Bowery,  to  her  own  sole  and  separate 
use  and  benefit.  And  it  is  clearly  proved,  also,  that  the  crown 
of  England  claimed  to  own  the  farm  in  fee,  solely  and  exclu- 
sively, and  not  as  tenant  in  common  with  any  person  or  persons. 
All  the  transactions  of  the  government  officers  concerning  it, 
show  an  assertion  of  title  and  absolute  dominion  over  the  whole 
property. 

I  have  been  thus  minute  on  the  first  branch  of  the  defence 
made  by  the  plea,  because  the  complainants'  strongest  point 
was  made  on  the  assertion  that  Queen  Anne  held  the  farm  as 
tenant  in  common  with  Cornelius  Bogardus,  and  that  the  de- 
fendants, under  the  Queen's  grant,  entered  and  held  in  the  same 
manner.  - 

Now  if  it  had  been  proved  that  the  Queens  possession  was 
as  tenant  in  common,  the  case  cited  from  13  Johns.  406,  shows 
that  it  would  not  establish  the  position  that  one  to  whom  she 
granted  the  whole  in  fee,  would  also  be  a  tenant  in  common, 
and  his  entry  made  in  that  character ;  while  it  is  indisputable 
that  if  she  were  in  possession,  claiming  the  whole  in  fee,  exclu- 
sive of  any  other  right,  her  grantee  would,  as  a  matter  of  course, 
be  deemed  to  have  entered  with  a  like  claim,  and  to  have  con- 
tinued an  exclusive  possession  in  severalty.  In  other  words, 
if  the  complainants  fail  to  show  that  the  possession  of  the  crown 
was  that  of  one  holding  as  a  tenant  in  common,  there  is  no 
shadow  of  pretence  for  alleging  that  the  possession  of  Trinity 
Church  ever  bore  that  character. 

The  importance  of  the  complainants'  effort  on  this  part  of 
the  case  is  obvious  from  this,  that  if  the  corporation  of  Trin- 
ity Church  in  1705  entered  into  possession  of  the  Queen  s  Farm 


15 


under  a  patent  or  deed  professing  to  convey  the  whole  farm,  and 
continued  in  possession,  claiming  the  entire  title  for  sixty  years 
next  thereafter,  such  possession  of  itself  would  be  a  complete  and 
perfect  bar  against  all  persons,  however  valid  their  title  might 
have  been  to  the  whole,  or  any  part  of  the  farm,  in  the  year  1705. 
And  after  twenty  years  of  such  possession,  no  action  short  of  a 
writ  of  right  could  have  availed  the  adverse  owner ;  while 
forty  years  were  a  bar  to  such  an  account  as  is  sought  by  the 
bill  in  this  cause.  Such  was  the  law  of  England  and  the  law 
of  this  colony  at  that  period.  It  was  a  sound  and  beneficent 
provision,  which  has  so  far  found  favor  with  the  advancing  intel- 
ligence of  the  present  age,  that  the  time  of  limitation  in  actions 
to  recover  lands  has  been  shortened  in  this  state,  until  it  is  now 
only  twenty  years,  where,  before  the  Revolution,  sixty  years 
were  permitted  to  the  claimant.  It  was  a  rule  of  law,  applica- 
ble to  corporations  as  well  as  individuals  ;  it  protected  the  hum- 
ble farms  and  tenements  of  the  poor  and  lowly,  as  well  as  the 
manors  and  glebes  of  the  wealthy  and  powerful.  And  it  is  a 
proper  and  just  defence  against  old  and  dormant  claims  in  fa- 
vor of  the  corporation  of  Trinity  Church,  and  should  be  as 
readily  conceded  to  them  as  it  would  be  to  the  complainants, 
were  they  invoking  its  aid  against  the  corporation. 

II.  The  remaining  branch  of  the  first  great  proposition  con- 
tained in  the  plea  is,  that  Queen  Anne,  on  the  23d  day  of  No- 
vember, 1705,  by  letters  patent,  granted  and  conveyed  the 
farm  in  question  to  Trinity  Church,  by  its  then  corporate 
name,  in  fee,  reserving  a  quit-rent  of  three  shillings  annually. 

The  bill  of  complaint  sufficiently  establishes  this  fact.  It 
first  states  that  on  or  about  the  23d  of  November,  1705,  the 
corporation  of  Trinity  Church  accepted  and  received  the  let- 
ters patent  and  grant  of  Queen  Anne  of  that  date,  executed  by 
Lord  Cornbury,  then  governor  in  chief  of  the  province  of 
New  York,  delivered  to  the  corporation,  and  duly  recorded  in 
the  office  of  the  Secretary  of  State  ;  and  that,  by  such  letters 
patent,  there  was  granted  and  conveyed  to  the  corporation 
that  parcel  of  land,  &c,  then  known  by  the  name  of  the  Duke's 
Farm,  King's  Farm,  or  Queen's  Farm,  (describing  it  in  brief 
terms).  Subsequently,  the  bill  charges  that  in  and  by  those 
letters  patent,  the  whole  of  the  King's  Farm  was  granted  to 
the  corporation,  including  therein  the  shares  of  the  heirs  of 
Anneke  Jans,  who  were  parties  to  the  instrument  of  transport 
in  1671 .    The  latter  clause  is  one  of  the  intimations  of  a  ten- 


10 


ancy  in  common  with  which  the  bill  abounds,  and  is  not  im- 
portant in  reference  to  the  question  immediately  in  hand. 

The  complainants  having  thus  made  the  execution  of  the 
grant  from  Queen  Anne  a  part  of  their  claim,  it  seems  wholly 
needless  to  pursue  the  inquiry.  The  defendant,  nevertheless, 
introduced  the  original  letters  patent,  under  the  great  seal  of 
the  province  of  Xew  York,  signed  by  the  secretary,  "  By  His 
Excellency's  command,*'  and  recorded  among  the  patents  in 
the  secretary's  office.  An  objection  was  made  to  the  letters 
patent,  because  they  do  not  bear  the  signature  of  the  governor, 
Lord  Cornbury  ;  and  it  was  urged  that  an  agent  executing  a 
deed  for  his  principal,  must  always  sign  as  well  as  seal  the 
deed.  The  last  argument  proves  too  much,  because  an  agent 
thus  executing,  must  sign  the  principal's  name,  adding  his  own 
as  attorney.  (Toicnsend  v.  Hubbard,  4  Hill's  R.,  351,  in  the 
Court  for  the  Correction  of  Errors,  and  Toicnsend  v.  Corning, 
23  Wend.,  435,  in  the  Supreme  Court.)  Therefore,  to  have 
made  the  execution  of  this  patent  valid  in  form  as  the  deed  of 
Queen  Anne,  according  to  the  complainants'  argument,  it  should 
have  been  signed,  *  Anne,  by  her  governor,  or  attorney,  Corn- 
bury  ;"  and,  moreover,  should  have  had  her  own  seal,  and  not 
the  seal  of  the  colony,  appended  to  it. 

Laying  aside  the  suggestion  as  to  the  seal,  I  venture  to  say 
that  not  an  instance  has  ever  been  known,  among  the  hundreds 
of  letters  patent  of  various  descriptions  granted  here  while 
Xew  York  was  a  colony,  or  in  the  thousands  of  similar  instru- 
ments executed  in  the  name  of  the  sovereign  in  England,  where 
such  a  form  of  execution  was  used. 

The  distinction  is,  that  these  letters  patent  are  emanations 
from  the  sovereign  power,  the  evidences  of  the  pleasure  or 
bounty  of  the  government,  and  are  attested  by  the  govern- 
mental authorities  as  public  acts. 

The  commissions  from  the  sovereign  to  the  provincial  gov- 
ernors were  never  signed  by  the  monarch  in  person.  They 
were  attested  by  the  privy  seal,  and  by  the  signature  of  the 
officer  intrusted  with  its  immediate  custody. 

Those  commissions,  in  the  colony  of  New  York,  authorized 
the  governors  to  make  grants  of  lands,  which,  on  being  passed 
and  sealed  with  the  great  seal  of  the  province,  and  entered  on 
record,  were  to  be  good  and  effectual. 

The  sovereigns  of  England  never  granted  lands  by  deed 
Their  alienations  were  always  of  a  higher  character,  being 


17 

known  in  the  law  as  alienations  by  matter  of  record.  The  grants 
were  recorded  in  the  proper  office,  and  the  great  seal  was  affix- 
ed to  the  transcript  as  evidence  of  the  grant  to  the  public.  The 
letters  of  gift  or  transfer  were  thereby  made  patent,  or  open  to 
the  world.  In  practice,  whatever  rescript  or  authority  for  let- 
ters patent  emanated  from  the  sovereign  personally,  whether 
under  his  sign-manual  or  by  writ  of  privy  seal ;  it  formed  the 
warrant  for  the  officer  holding  the  great  seal  to  affix  the  same  to 
the  letters  patent,  and  was  retained  as  his  authority  for  the  act. 

It  is  very  evident  that  grants  of  land  in  the  colony,  pursu- 
ing the  forms  used  at  home,  were  frequently,  if  not  usually, 
made  without  the  governor's  signature,  and  in  the  precise 
form  of  attestation  that  is  used  in  the  letters  patent  of  1705  to 
Trinity  Church. 

The  letters  patent  granted  in  1732,  and  again  in  1733,  by 
Governor  Cosby  to  Anthony  Rutgers,  for  the  Swamp,  or  Fresh 
Water,  so  called,  at  and  near  the  Colch  or  Collect,  were  at- 
tested precisely  like  these,  by  the  great  seal  and  the  deputy 
secretary's  signature,  and  were  not  signed  by  the  governor. 

Governor  Fletcher,  it  appears,  signed  the  letters  patent  to 
John  Evans,  in  1694,  before  mentioned,  and  the  lease  to  the 
corporation  of  Trinity  Church,  as  well  as  the  charter  to  that 
Church  in  1697.  On  the  other  hand,  Lord  Cornbury,  when 
governor,  did  not,  so  far  as  it  appears,  attach  his  signature  to 
such  instruments  ;  nor  did  Governor  Montgomerie,  or  Govern- 
or Cosby,  who  succeeded  him.  The  charter  of  1708,  granting 
to  the  City  of  New  York  the  ferry  rights  between  Manhattan 
Island  and  Long  Island,  and  the  lands  on  Long  Island,  oppo- 
site the  city,  between  low  and  high  water  mark,  wTas  not  signed 
by  the  governor,  but  is  attested  like  the  grant  to  Trinity  Church 
in  1705. 

So  of  the  charter  granted  to  the  City  of  New  York  by 
Governor  Montgomerie,  on  the  15th  of  January,  1730,  which, 
besides  the  great  seal,  has  only  the  approval  of  the  attorney- 
general  :  yet  it  is  the  existing  charter  of  the  most  powerful 
and  important  municipal  corporation  in  America. 

The  letters  patent  granting  the  Church  Farm,  appear  to 
have  been  recorded  in  the  secretary's  office,  in  Liber  No.  7  of 
Patents,  fol.  338,  &c.  But  the  indorsement  on  the  original 
does  not  state  the  date  of  the  recording,  nor  is  it  proved.  It 
however  appears  that  the  patent  granting  the  SwamD  to  Ev- 
ans, in  1694,  was  recorded  in  the  same  office,  in  Liber  No. 

B 


IS 


6  of  Patents,  page  470  ;  and,  as  it  was  annulled  in  1699,  and 
never  restored,  it  was  doubtless  recorded  at  or  about  its  date. 
Hence  the  grant  to  the  Church,  to  have  appeared  in  the  next 
book  of  patents,  must  also  have  been  recorded  at  or  about  the 
period  of  its  execution.  This  is  rendered  the  more  certain 
from  the  great  number  of  such  patents  executed  in  Governor 
Fletcher's  time,  as  shown  by  the  annulling  act  of  1699,  and 
which,  in  due  course,  would  be  entered  of  record  intermediate 
the  grant  to  Evans  and  that  to  Trinity  Church. 

The  execution  of  Queen  Anne's  grant  to  the  defendants,  as  set 
up  in  their  plea,  is  therefore  established  by  the  proofs,  as  well 
as  by  the  complainants'  own  charge  in  the  bill  of  complaint. 

There  is  one  further  objection  to  the  grant,  founded  upon 
the  act  of  the  Colonial  Assembly,  heretofore  mentioned,  passed 
May  12,  1699,  by  which  it  was  provided  that  it  should  not  be 
in  the  power  of  the  provincial  governors  to  grant  or  demise 
the  King's  Farm,  and  certain  other  lands,  for  any  longer  period 
than  for  his  own  time  in  the  government ;  and  declaring  that 
such  lands  were  for  the  benefit  and  accommodation  of  the 
governors  of  the  province  for  the  time  being. 

This  act  was  repealed  by  the  Assembly  on  the  27th  of  No- 
vember, 1702,  and  was  not  in  force  in  the  colony  from  that 
time  to  June  26,  1708,  when  the  Queen  disapproved  the  repeal- 
ing act,  and  confirmed  the  act  of  1699.  (1  Van  Schaack's 
Laws,  31,  51.)  It  is  contended  that  the  effect  of  her  disap- 
proval was  to  undo  all  that  had  been  done  while  the  repealing 
law  continued  in  force. 

Such  a  rule  of  construction,  applied  to  private  rights,  would 
be  denounced  as  most  tyrannical,  arbitrary,  and  unjust.  For 
instance,  we  have  an  act  of  Congress  requiring  a  residence  of 
five  years  to  entitle  an  alien  to  naturalization.  Suppose  that 
Congress,  at  its  late  session,  had  repealed  this  law,  and  enabled 
aliens  at  once  to  become  citizens,  and  an  alien  now  arriving 
here  should  take  the  necessary  oaths,  become  a  citizen,  and 
purchase  lands ;  and,  at  the  next  session  of  Congress,  the  act 
of  the  late  session  should  be  repealed.  Would  not  the  doc- 
trine that  thereby  all  that  was  done  under  the  statute  while  it 
existed,  was  avoided,  be  denounced  as  monstrous  and  absurd? 

The  principle  is.  the  same  in  respect  of  the  repealing  act  of 
1702.  Rights  acquired  under  it,  prior  to  the  Queen's  disap- 
proval, were  as  valid  and  effectual  as  if  the*  act  of  1699  had 
never  been  enacted. 


19 


It  is  further  contended,  that  the  repealing  act  of  1702  was 
of  no  force  until  it  received  the  Queen's  assent,  and  it  never 
did  receive  her  sanction.  If  the  argument  held  good,  it  would 
be  suicidal  to  the  complainants,  because  the  Queen  never  ap- 
proved the  annulling  act  of  1699,  till  June  26,  1708 ;  and  thus 
the  latter  act  was  not  in  force  when  the  letters  patent  were 
granted.  But  this  was  not  the  effect  of  the  colonial  legislation. 
Such  statutes  were  valid  and  in  force  until  they  were  disap- 
proved by  the  sovereign.  The  governor's  approval  was  suf- 
ficient in  the  first  instance. 

In  truth,  the  whole  discussion,  as  to  the  force  and  validity  of 
the  letters  patent,  is  foreign  to  the  only  question  in  issue ;  and 
the  defence  is  just  as  perfect,  if  the  patent  were  defective  in 
form  and  in  its  execution,  or  were  contrary  to  the  positive  en- 
actments of  an  existing  statute,  as  if  its  validity  in  all  these  re- 
spects were  conceded. 

To  found  the  defence  of  adverse  enjoyment  under  a  claim  of 
title,  it  is  wholly  immaterial  whether  the  claim  be  made  under 
a  deed  valid  in  form,  or  under  one  wanting  in  all  the  essentials 
of  a  proper  conveyance.  Indeed,  an  actual  occupancy  by  one 
claiming  the  title,  will  ripen  into  a  perfect  right  in  twenty  years, 
although  he  has  no  written  evidence  of  title  whatever. 

Nor  does  the  circumstance  that  the  title  claimed  is  void,  or 
that  it  was  taken  or  commenced  in  fraud  of  the  law,  detract 
from  the  force  of  an  adverse  possession  maintained  under  it. 
In  the  case  of  Harpending  v.  The  Refonned  Protestant  Dutch 
Church,  the  immense  property  in  dispute,  was  adjudged  to  the 
Church  by  the  Supreme  Court  of  the  United  States,  on  a  na- 
ked plea  of  an  actual  occupancy  for  forty  years,  claiming  the 
title  adversely  to  the  complainants,  without  setting  up  any 
written  title  or  claim.  And  although  it  appeared  that  the 
Dutch  Church  originally  took  the  property  and  entered  upon 
it  under  a  will,  at  a  time  when  they  had  no  right  to  take  prop- 
erty by  devise,  and  when  they  were  prohibited  by  law  from  so 
doing,  and  it  was  contended  that  such  an  entry  in  defiance  of 
the  law,  was  fraudulent,  and  could  never  become  the  basis  of 
an  adverse  possession,  nor  prevent  the  entry  of  the  true  owner, 
yet  that  high  tribunal  declared  that  those  facts  did  not  impair 
the  defence  of  the  Dutch  Church,  and  that  their  plea  was  a  per- 
fect bar  to  all  the  world  (16  Peters's  U.  S.  Rep.  455).  A  pre- 
cisely similar  decision  was  made  by  the  highest  court  in  this 
state  in  Humbert  v.  Trinity  Church  (24  Wend.  587). 


20 


So  in  this  case,  the  defence  arising  from  the  possession  and 
claim  of  title  is  equally  effectual,  if  proved,  as  if  there  were  no 
question,  or  even  criticism,  on  the  force  and  validity  of  the  let- 
ters patent  of  1705.  Whether  they  were  good  against  the 
crown,  or  were  void,  they  constituted  a  written  color  of  title, 
under  which  the  parties  entered  and  claimed  to  hold  the  land. 

All  these  principles  as  to  adverse  possession,  were  decided 
by  the  Court  for  the  Correction  of  Errors,  in  Clapp  v.  Broma- 
gham  (9  Cowen,  530).  It  was  there  held  that  possession  under 
claim  of  title,  with  or  without  a  valid  deed,  is  adverse ;  and 
though  the  possessor's  title  be  clearly  defective,  yet  the  true 
owner  must  sue  within  twenty  years,  or  his  entry  is  barred. 
And  that  the  entry  of  one  of  several  heirs  claiming  the  whole 
and  denying  possession  to  his  co-heirs,  and  selling  the  land  to  a 
stranger,  constitutes  a  possession  adverse  to  the  co-heirs,  and, 
being  continued  twenty  years,  bars  their  right  of  entry.  (See 
also  Jackson,  ex  dem.  Vanderlyn  v.  Newton,  18  Johns.  Rep.  355, 
and  La  Frambois  v.  Jackson,  ex  dem.  Smith,  8  Cowen,  589.) 

Second.  The  second  head  or  proposition  contained  in  the 
defendant's  plea  is,  that  the  corporation  of  Trinity  Church,  on 
the  day  of  the  date  of  the  letters  patent,  entered  upon  and  became 
seized  in  their  demesne  as  of  fee  in  the  Queen's  Farm  ;  claim- 
ing, by  force  of  the  letters  patent,  and  not  otherwise,  to  be  of 
right  sole  and  exclusive  owners  of  the  whole  farm  in  fee-simple. 

The  bill  charges  that  the  Church  entered  upon  the  whole 
farm  in  1705,  under  the  letters  patent,  and  the  instrument  of 
transport  executed  by  the  heirs  of  Anneke  Jans  in  1671.  And 
the  complainants  seek  to  connect  the  transport  with  the  entry, 
by  a  letter  from  a  committee  of  Trinity  Church,  in  1785,  to  the 
claimants  of  apparently,  another  property,  called  Dominie's 
Hook. 

As  to  this  letter,  I  can  not  add  any  thing  to  the  conclusive 
remarks  of  Chancellor  Walworth,  when  this  plea  was  before 
him  in  1833.  The  letter  contains  no  statement  or  admission 
that  the  Church  ever  claimed  under  the  transport ;  and  if  the 
admission  had  been  direct  and  positive,  it  could  have  no  influ- 
ence upon  the  defence.  The  Church  had  for  eighty  years  pos- 
sessed the  property  under  the  grant  of  Queen  Anne,  which  con- 
veyed the  whole,  and  they  had  claimed  the  whole.  The  title 
thus  acquired  could  not  be  shaken  or  impaired  by  the  fact  that 
Queen  Anne,  when  she  granted  the  whole,  really  owned  but  five 
undivided  sixth  parts  ;  much  less  by  an  admission  of  the  fact 


21 


made  eighty  years  subsequent  to  her  grant.  The  letter  was 
simply  intended  to  point  out  to  the  claimants,  what  it  was  sup- 
posed they  did  not  know,  that  their  ancestors  had  conveyed  in 
167],  the  title  which  they  set  up  in  1785.  And  it  does  not  ap- 
pear that  the  committee  who  wrote  it  were  aware  that  Anneke 
Jans  left  any  heirs,  save  those  by  whom  the  transport  appeared 
to  have  been  executed. 

The  implied  admission  which  the  complainants  attempt  to 
derive  from  the  letter  of  1785,  is  far  from  being  as  strong  or 
legitimate  as  that  which  might  be  supposed  to  arise  from  the 
circumstance  of  taking  a  deed  from  the  real  owner.  Yet  the 
Supreme  Court  decided  against  such  an  inference  in  Jackson  v. 
Newton,  (18  Johns.  355). 

The  fact  that  the  corporation  of  Trinity  Church  entered  in 
1705,  and  claimed,  as  is  alleged  in  the  plea,  is  abundantly 
proved.  The  lease  to  Ryerse  in  1704,  shows  that  they  did 
not  then  claim  as  owners  or  in  fee.  Every  act  and  claim  of 
theirs  after  1705,  are  those  of  an  absolute  owner  of  the  whole 
estate.  The  rent  reserved  in  Governor  Cornbury's  lease,  was 
no  longer  paid.  No  rents  were  ever  after  paid,  save  the  quit- 
rent  reserved  in  the  letters  patent.  The  Church  leased  the 
land  at  pleasure,  from  that  period  onward  to  the  present  time, 
for  long  terms,  generally  for  21  years,  and  ranging  to  99  years, 
and  in  process  of  time  sold  large  portions  of  it  in  fee. 

The  time  of  their  entry  is  fixed  by  the  bill  as  cotemporary 
with  the  patent  from  the  queen.  To  what  else  can  this  entry 
be  attributed  than  that  grant?  They  had  no  other  deed  or 
muniment  of  title.  They  received  a  deed  in  fee,  they  entered, 
and  they  claimed  in  fee.  Can  there  possibly  be  a  doubt  that 
they  entered  under  such  deed  ?  It  does  not  appear  that  they 
had  ever  heard  of  the  deed  of  transport.  The  inferences  are 
all  adverse  to  such  a  supposition.  The  government  is  never 
to  be  presumed  to  grant  the  same  land  twice.  {Jackson,  ex  dem. 
Stoutenburgh  v.  Murray,  7  Johns.  R.  5).  The  farm  had  been 
known  as  the  Duke's  and  the  King's,  for  more  than  thirty  years, 
without  the  assertion  of  a  hostile  right  or  claim.  And  no  per- 
son receiving  a  title  from  the  sovereign  power  of  the  state, 
either  at  that  day  or  this,  would  think  of  inquiring  into  the 
source  of  the  title,  or  of  investigating  it,  as  in  the  instance  of 
conveyances  by  private  individuals. 

Rut  there  is  another,  and  certainly,  in  view  of  all  the  facts, 
a  very  strange  argument,  urged  against  referring  the  entry  in 


22 


1705  to  the  letters  patent,  and,  according  to  it  the  character 
of  a  claim  of  title  adverse  to  any  other  right.  It  is  that  the  cor- 
poration of  Trinity  Church  continued  in  possession  as  tenants 
to  the  crown,  till  the  American  Revolution,  and  from  thence  to 
the  present  time,  have  been  the  tenants  of  the  people  of  this 
state.  This  position,  it  is  to  be  observed,  is  directly  In  the 
teeth  of  the  bill  of  complaint,  which  alleges  positively  that  the 
Church  entered  into  the  farm  under  the  transport  and  the  let- 
ters patent,  and  thereby  became  and  were  seized  as  tenants  in 
fee,  &c.  And  it  is  directly  in  contravention  of  the  letters  pat- 
ent, as  stated  in  the  bill  and  as  proved.  Much  of  the  argument, 
it  is  true,  was  based  upon  the  alleged  invalidity  of  the  grant 
of  Queen  Anne,  of  which  I  have  already  said  quite  enough. 
But  it  was  urged  with  apparent  gravity,  aside  from  that  point. 
Now  I  have  been  unable  to  discover  a  particle  of  evidence  in 
support  of  the  idea  that  the  Church  continued  in  possession  of 
the  farm  as  a  tenant,  holding  over  after  the  expiration  of  Lord 
Cornbury's  lease  ;  while  the  mass  of  evidence  introduced  in 
support  of  the  next  head  of  the  plea,  is  uniform  and  conclusive 
to  the  contrary  in  every  instance.  As  to  the  permission  of  the 
government  to  their  continued  occupancy,  coupled  with  the  oft- 
asserted  illegality  and  nullity  of  the  grant  in  1705,  there  is  much 
testimony  rebutting  both  positions,  and  none  in  favor  of  any 
such  permission.  I  should  have  alluded  before  to  the  extend- 
ed, but  vague  and  undefined  allusions  to  the  conduct  of  Lord 
Cornbury  in  reference  to  Trinity  Church,  and  the  singular  rea- 
sons imagined  for  his  not  signing  the  letters  patent.  All  of 
these,  as  well  as  the  assertion  of  illegality,  may  be  further  put 
to  rest  by  a  recurrence  to  the  testimony  and  to  historical  facts. 

Trinity  Church,  as  a  part  of  the  religious  establishment  con- 
nected with  the  state  at  home,  was,  from  its  institution,  favored 
and  patronized  by  the  government  here  ;  and  to  such  an  extent 
that,  prior  to  the  Revolution,  it  was  repeatedly  the  cause  of 
great  offence  to  other  religious  sects,  and  of  many  political 
struggles  and  broils  in  the  colony.  The  grant  of  the  Queen's 
Farm  was  in  entire  accordance  with  the  uniform  policy  of  the 
provincial  government.  It  appears,  by  a  paper  laid  before  the 
clergy  convened  by  Lord  Cornbury  at  New  York,  in  Octo- 
ber, 1704,  that  he  had  recommended  to  the  queen  to  bestow 
the  King's  Farm  to  the  use  and  benefit  of  Trinity  Church.  In 
November,  1705,  the  grant  was  made,  which,  from  its  extent 
and  notoriety,  and  the  hostility  already  exhibited  toward  Gov- 


23 


ernor  Cornbury  in  the  province,  to  say  nothing  of  the  jealousy  of 
those  of  other  religious  denominations,  would  be  likely  to  reach 
the  ears  of  the  government  in  England  without  much  delay. 
If,  therefore,  the  grant  had  been  made  without  the  previous  as- 
sent of  the  Queen,  or,  being  made  without  it,  had  been  deemed 
extravagant  and  improvident,  it  would  doubtless  have  been  re- 
voked within  a  year  or  two  after  its  date. 

Instead  of  any  such  proceeding,  it  appears  by  a  letter  from 
her  Secretary  of  State,  Lord  Bolingbroke,  dated  April  14, 1714, 
in  the  Queen's  name,  addressed  to  Governor  Hunter,  who  suc- 
ceeded Lord  Cornbury,  that  the  Queen,  on  learning  that  the 
Church  had  been  prosecuted  in  Chancery  for  the  rents  which 
Governors  Fletcher  and  Cornbury  had  omitted  to  collect,  and 
that  her  letters  patent  to  the  Church  were  rendered  disputable, 
directed  that  all  such  proceedings  should  cease  until  her  further 
pleasure  was  signified.  In  this  document,  the  grant  of  the  farm 
to  the  Church  by  Lord  Cornbury  is  mentioned  by  way  of  re- 
cital, as  having  been  made  by  virtue  of  the  authority  derived 
from  the  Queen,  and  granted  under  the  seal  of  her  Province  of 
New  York,  without  any  intimation  of  its  being  unwarranted  or 
improper.  No  further  proceedings  were  ever  had,  or  direc- 
tions given,  as  to  the  suit,  so  far  as  it  is  known. 

In  the  thirty-fifth  section  of  Governor  Montgomerie's  charter 
to  the  city,  there  is  an  express  grant  and  confirmation  to  all 
the  inhabitants  and  freeholders,  of  all  lands  on  Manhattan  Isl- 
and, to  them  granted  and  conveyed,  or  intended  so  to  be,  by 
any  of  the  late  governors  of  the  province. 

Besides  this  testimony,  the  quit-rents  on  the  letters  patent, 
were  paid  in  full  by  the  Church  to  the  colonial  receiver-general, 
in  1738,  in  1751,  and  in  1768,  and  to  the  treasurer  of  this  state 
in  1786,  when  they  were  commuted  ;  and  for  one  hundred  and 
forty  years,  there  has  been  no  effort  made  or  pretence  set  up, 
on  behalf  of  the  government,  to  subject  Trinity  Church  to  the 
position  of  tenants  holding  the  Church  Farm  under  the  king 
of  England,  or  under  the  people  of  the  state. 

The  notion  of  any  such  tenancy  having  existed  after  1705,  is 
entirely  unfounded. 

The  residue  of  the  statement  of  the  plea,  that  the  Corpora- 
tion of  Trinity  Church,  upon  their  entry  in  1705,  became  seized 
of  the  farm  of  and  in  their  demesne  as  of  fee,  is  not  only  as- 
serted by  the  complainants  in  their  bill,  but  is  a  direct  and  nec- 
essary consequence  of  their  entry,  claiming  the  whole  title  in 


24 


fee  by  force  of  the  letters  patent.  (Co.  Litt.,  15,  a;  Ricard  v. 
Williams,  7  Wheaton,  59;  The  People  v.  Leonard,  11  Johns. 
R.,  504.) 

Third.  The  remaining  proposition  constituting  the  defend- 
ants' plea  is,  that  by  themselves  and  those  claiming  under  them, 
they  have,  from  the  time  of  their  entry  under  the  letters  patent 
into  the  Queen's  Farm,  on  the  23d  of  November,  1705,  contin- 
ually down  to  the  year  1831,  when  their  plea  was  filed,  been 
in  the  uninterrupted,  sole,  exclusive,  and  actual  seizin  and  pos- 
session of  the  premises  called  the  Dominie's  Bowery,  and  of 
every  part  thereof,  claiming  the  same  as  sole  and  exclusive 
owners  in  fee ;  and  have  been  in  the  sole  and  exclusive  receipt 
and  enjoyment  of  the  rents,  issues,  and  profits,  to  their  own 
sole  and  separate  use  and  benefit,  without  having  paid  over  or 
accounted  for  any  part  of  the  same  to  the  complainants,  or  to 
any  person  under  whom  they  claim,  and  without  at  any  time 
having  held  or  possessed  any  part  of  the  premises,  or  any  rents 
or  profits  therefrom,  or  any  estate  or  interest  therein,  in  com- 
mon and  undivided  with,  or  as  trustee  of  the  complainants  or  of 
any  person  under  whom  they  claim  to  derive  title,  and  without  < 
ever  having  admitted  or  acknowledged  that  the  complainants, 
or  any  person  under  whom  they  claim,  were  entitled  to  any 
payment  or  account,  or  had  any  estate,  share,  or  interest  in 
common  or  undivided,  in  the  premises  in  controversy. 

The  testimony  introduced  by  the  defendants  in  support  of 
this  branch  of  their  defence,  was  most  full,  complete,  and  over- 
whelming. Its  historical  interest,  and  the  patient,  minute,  and 
almost  Herculean  labor  of  its  preparation  and  development, 
richly  merit  a  far  more  extended  notice  than  my  pressing  duty 
to  other  suitors  in  this  court,  will  enable  me  to  bestow  upon  the 
subject.  My  notice  of  the  testimony  will,  therefore,  be  brief 
and  general. 

But,  first,  the  fact  that  the  Church  was  in  the  actual  posses- 
sion of  the  property  from  1705  to  the  present  time,  (with  a  sol- 
itary exception  after  the  Revolutionary  War,  which  will  be 
discussed  hereafter,)  is  conceded  by  the  complainants  through- 
out their  bill.  They  found  their  claim  for  an  account  upon 
this  allegation,  together  with  the  assertion  that  the  Church  held 
as  tenant  in  common  with  their  ancestors  respectively. 

The  issue  made  by  the  plea,  therefore,  is  mainly  upon  the 
character  of  the  possession  thus  maintained  by  the  Church. 


25 


Was  it  a  possession  claiming  the  whole  title,  exclusive  of  any 
other  right ;  or  was  the  Church,  for  more  than  a  century,  occu- 
pying the  land,  and  receiving  the  rents  for  the  use  and  benefit 
of  the  successive  Cornelius  Bogarduses,  and  the  heirs  of  the 
last  of  the  name,  as  well  as  for  the  Church's  own  benefit  ?  • 

It  is  a  rule  of  evidence  founded  on  the  experience  of  human 
aflfairs,  that  when  a  state  of  things  is  once  established  by  proof, 
the  law  presumes  that  such  state  of  things  continues  to  exist 
till  the  contrary  is  shown,  or  till  a  different  presumption  is 
raised  from  the  nature  of  the  subject  in  question  (1  Greenleaf's 
Law  of  Evid.  §  41). 

Starting  with  the  conceded  fact  that  the  Church  took  pos- 
session of  this  farm  in  1705,  claiming  it  as  owner  under  a  grant 
of  the  whole  from  the  crown,  which  neither  mentioned  nor  al- 
luded to  the  right  of  any  person  whatsoever ;  and  following  it 
with  the  ascertained  fact  that  for  eighty  years  there  was  no  in- 
terruption of  its  possession ;  it  must  be  obvious  to  the  plainest 
common  sense,  that  strong  and  cogent  proof  is  requisite  to  show 
that  during  all  this  long  period  the  Church  held  merely  as  a  ten- 
ant in  common. 

Instead  of  proof  of  this  character,  there  is  nothing  of  the 
kind  presented  on  the  part  of  the  complainants,  while  a  con- 
tinued series  of  acts  of  ownership,  extending  through  the  whole 
period,  and  utterly  inconsistent  with  any  recognition  of  any 
claim,  interest,  or  right  in  any  person  other  than  the  Church,  is 
proved  on  the  part  of  the  defendants. 

First.  The  historical  evidence  of  the  claim  of  ownership 
on  the  part  of  the  Corporation  of  Trinity  Church,  exclusive  of 
any  other  right. 

The  most  ancient  map  of  the  city  which  I  have  met  with, 
exhibiting  "  New  Yorke"  in  1695,  limits  the  populated  terri- 
tory on  the  north,  to  what  is  now  Wall-street,  and  where  there 
was  a  wall  at  that  day.  The  King's  Farm  is  laid  down  as  ex- 
tending north  from  a  boundary  line  drawn  near  where  Dey- 
street  is  now  situated ;  and  the  tract  where  Trinity  Church 
now  stands,  is  designated  as  the  "  ground  proper  for  building 
an  English  Church."  A  copy  of  this  map  is  to  be  found  in  the 
excellent  Manual  prepared  by  Mr.  Valentine,  clerk  of  the 
Common  Council  for  the  years  1845-6. 

Next  is  a  "  Plan  of  the  City  of  New  York,  from  an  actual 
survey  made  by  James  Lyne,"  dated  1728,  a  codv  of  which  is 


26 


published  in  Mr.  Valentine's  Manual  for  1842-3,  and  also  in 
Dunlap's  History  of  New  York.  The  most  northwardly  street 
laid  down  on  this  map,  west  of  Broadway,  is  Windmill  Lane, 
about  midway  between  the  present  Cortland  and  Liberty  streets, 
(though  lines  are  drawn  as  if  for  a  street  where  Cortland-street 
now  runs) ;  and  the  "  King's  Farm"  is  laid  down  as  extending 
along  the  North  River  an  undefined  distance  from  a  point  a 
little  below  the  present  Fulton-street,  northwardly  beyond  the 
present  Park,  which  was  then  a  common.  Broadway  termin- 
ated at  the  lower  end  of  the  common,  from  whence  the  "  High 
Road  to  Boston"  set  out,  passing  up  what  is  now  Park  Row 
and  Chatham-street.  The  common  extended  to  the  "Fresh 
Water,"  which  is  mentioned  in  the  grants  to  John  Evans  and 
Anthony  Rutgers. 

The  map  of  the  City  of  New  York,  made  by  Francis  Maer- 
schalck,  city  surveyor,  which  to  this  day  is  frequently  referred 
to  in  conveyances  of  lands,  in  what  is  now  the  extreme  lower 
part  of  the  city,  was  published  in  1755.  Upon  this  map  the 
King's  Farm  is  laid  down  as  extending  from  Partition-street, 
(now  Fulton,)  northerly  along  Hudson's  River ;  and  from  Par- 
tition to  Warren  street  it  is  marked  as  being  laid  out  in 
blocks,  with  intersecting  streets,  and  at  great  intervals  scatter- 
ing tenements  are  designated  on  this  portion  of  the  farm.  It 
may  be  well  to  mention  here,  that  the  Palisades,  built  in  the 
French  war,  (frequently  called  the  Stockadoes  in  the  leases, 
&c.,)  are  laid  down  on  this  map  as  extending  in  a  succession 
of  lines,  making  obtuse  angles  with  each  other,  with  block- 
houses at  the  angles,  from  St.  James's-street,  East  River,  across 
the  common  (now  the  Park)  to  t^e  North  River,  about  one  hun- 
dred and  ten  feet  north  of  Warren-street,  crossing  what  is  now 
Broadway  about  the  same  distance  above  Warren-street,  and 
keeping  that  average  distance  to  the  river.. 

The  History  of  the  Province  of  New  York,  by  William  Smith, 
is  a  work  of  great  authenticity  ;  and  from  the  circumstance 
that  its  author  was  an  eminent  lawyer,  born  and  residing  in 
the  province,  and  as  an  ardent  Presbyterian,  entering  zealous- 
ly into  the  controversies  of  his  day,  especially  the  one  relative 
to  King's  (now  Columbia)  College,  in  which  Trinity  Church 
was  very  conspicuous  ;  it  can  not  be  suspected  of  any  partial- 
ity toward  that  Church,  or  of  any  disposition  to  favor  its  char- 
acter or  pretensions.  The  first  volume  of  this  history  was  pub- 
lished in  175G-7,  bringing  the  narrative  of  events  down  to  the 


27 

year  1736  ;  and  the  appendix  contains  an  account  of  the  state 
and  condition  of  the  colony  at  the  time  of  its  publication.  In 
his  description  of  the  "  City  and  County  of  New  York,"  the 
author  describes  the  line  of  palisadoes  as  laid  down  on  Maer- 
schalck's  map ;  and  in  reference  to  the  corporation  of  Trinity 
Church,  he  says,  "  The  revenue  of  this  Church  is  restricted  by 
an  act  of  Assembly  to  £500  per  annum  ;  but  it  is  possessed  of  a 
real  estate  at  the  north  end  of  the  town,  which,  having  been  late- 
ly divided  into  lots  and  let  to  farm,  will  in  a  few  years  pro- 
duce a  much  greater  income." 

In  the  second  volume  of  Judge  Smith's  history,  published  by 
his  son  after  his  death,  the  author,  in  giving  his  account  of  the 
political'  and  sectarian  struggles  preceding  the  chartering  of 
King's  College,  says  that,  "so  early  as  the  8th  of  April,  1752, 
the  wardens  and  vestry  of  Trinity  Church,  by  Mr.  Barclay, 
their  rector,  offered  a  part  of  the  estate  of  their  opulent  corpora- 
tion, in  the  suburbs  of  the  capital,  for  the  erection  and  conven- 
ience of  the  college."  Concurrently  with  this,  we  have  in 
evidence  the  munificent  grant  made  by  Trinity  Church  to 
King's  College,  being  a  deed  in  fee  to  the  college  corporation, 
dated  May  13,  1755,  and  conveying  all  that  part  of  the  King's 
Farm,  lying  between  Barclay  and  Murray  streets,  and  extend- 
ing from  Church-street  to  the  North  River. 

After  the  lapse  of  nearly  a  century,  no  higher  evidence  of 
possession  and  claim  of  title  can  be  imagined,  than  this  fur- 
nished from  the  pen  of  a  learned  and  eminent  historian,  who, 
during  his  whole  life,  was  unfriendly  to  the  institution  whose 
title  he  commemorates ;  and  who,  on  at  least  one  occasion,  as 
will  be  mentioned  in  another  place,  was  employed  in  his  pro- 
fessional capacity  against  Trinity  Church  in  respect  of  this 
identical  property. 

Next  in  the  order  of  time  is  a  "  Plan  of  the  City  of  New 
York,"  by  Bernard  Ratzen,  a  lieutenant  in  the  British  army, 
made  from  a  survey  in  1767.  On  this  map,  Warren-street  is 
the  farthest  street  up  Broadway  which  has  a  name  ;  but  the 
present  Chambers  and  Reade  streets,  and  one  block  of  the 
present  Duane-street,  are  marked  out ;  and  Church  and  Chapel 
streets  are  laid  down,  the  former  nearly  as  far  north  as  what 
is  now  Thomas-street,  and  Chapel-street  stopping  south  of  the 
point  where  Duane-street  now  intersects  it.  The  "  Road  to 
Greenwich"  is  also  laid  down,  running  along  and  near  the  mar- 
gin of  the  river,  beyond  where  Mr.  Lispenard's  house  and 


28 


garden  are  designated ;  and  certain  tenements  are  laid  down 
as  "  Mr.  Harrison's,"  west  of  the  road  to  Greenwich,  just 
above  where  Duane-street  now  intersects  Greenwich-street. 
Adjoining  Greenwich  road,  between  Warren  and  what  is  now 
Chambers  street,  another  garden  is  portrayed  on  the  map, 
which  corresponds  in  position  with  the  place  designated  on 
Lyne's  map,  in  1728,  as  the  "Bowling  Green  Garden."  The 
King's  or  Church's  Farm,  is  not  mentioned  on  Ratzen's  map, 
but  the  localities  to  which  I  have  alluded,  are  prominent  points 
in  the  documentary  evidence  of  the  possession  of  the  Church. 

Second.  The  record  and  documentary  evidence  of  the 
possession  and  exclusive-  ownership  of  Trinity  Church,  from 
1705  to  1831. 

The  lease  of  the  whole  farm  to  George  or  Joris  Ryerse, 
already  mentioned,  extended  to  the  year  1709.  The  deposi- 
tions of  Kooning  and  Layton,  taken  in  1751,  already  noticed, 
declare  that  Ryer  Ryerse  succeeded  Joris  Ryerse  in  the  pos- 
session of  the  King's  Farm,  under  the  Church  ;  Francis  Ryerse 
succeeded  to  Ryer  Ryerse ;  and  he  was  succeeded  by  one 
Harrison,  and  the  latter  by  one  Balm,  who  was  succeeded  by 
Cornelius  Cozine.  That  Cozine  had  it  for  some  years,  and 
then  Adam  Vandenburgh  took  it,  and  he  was  in  possession  in 
1751.  And  that  all  of  these  persons,  as  the  declarants  often 
heard,  and  always  understood,  held  as  tenants  of  the  English 
Church. 

Original  counterparts  of  leases  were  introduced  by  the  de- 
fendants, extending  through  this  period  as  follows :  From  the 
Corporation  of  Trinity  Church  to  Robert  Harrison,  dated  July 
20,  1721,  for  ten  years,  for  the  King's  Farm,  reciting  that  it 
was  lately  demised  to  Francis  Ryerse,  excepting  six  acres 
leased  to  W.  Lake,  and  the  lots  laid  out  and  staked  at  the 
south  end  of  the  farm.  A  lease  from  the  same  Corporation  to 
Cornelius  Cozine,  May  1,  1732,  for  a  term  of  ten  years,  in 
which  the  land  is  designated  as  the  Church  Farm. 

A  record  of  conviction,  and  an  original  writ  of  restitution  in 
the  Supreme  Court,  were  read  in  evidence,  by  which  it  appeared 
that  in  1746,  an  indictment  for  forcible  entry  and  detainer,  was 
found  against  Jacob  Brower  and  others  for  the  Church  Farm, 
described  as  being  the  freehold  of  Trinity  Church,  in  the  pos- 
session of  Adam  Vandenburgh  ;  on  the  trial  of  which,  Brower 
and  others  were  convicted,  rind  restitution  was  ordered  to  re- 
seize  the  Church  and  nut  Vandenburgh  in  Dossession. 


29 


In  1750,  the  Church  commenced  leasing  the  southern  part 
of  the  farm  in  single  city  lots,  and  thus  demised  some  thirty- 
three  lots  during  that  year,  including  several  which  were  on 
that  part  of  the  farm  claimed  as  the  Dominie's  Bowery.  Most 
of  these  lots  were  let  for  twenty-one  years.  The  number  of 
these  leases  of  city  lots  increased  with  great  rapidity  from 
1750  to  the  Revolution,  so  that,  at  the  latter  era,  almost  every 
foot  of  the  Church  Farm  lying  south  of  what  is  now  Reade- 
street,  (except  the  part  conveyed  to  Columbia  College,)  was 
under  lease  for  various  terms,  from  Trinity  Church,  sometimes 
for  sixty-three  years,  but  generally  for  terms  of  twenty-one 
years. 

I  will  refer  to  two  or  three  of  the  principal  leases,  as  exhib- 
iting most  conclusively,  the  entire  and  exclusive  possession  and 
control  of  the  corporation  over  the  King's  Farm,  in  different 
parts  of  the  so  called  Dominie's  Bowery,  nearly  one  hundred 
years  ago. 

In  1764  and  1768,  respectively,  the  Church  granted  two  leas- 
es to  Leonard  Lispenard,  one  of  eight  acres,  and  the  other  of 
over  nine  acres,  of  the  part  of  the  farm  called  the  Dominie's 
Bowery  ;  the  one  for  a  term  of  nearly  one  hundred  years,  and 
the  other  for  more  than  thirty  years.  These  tracts  are  situ- 
ated northwardly  and  eastwardly  of  what  is  now  known  as 
Hudson  or  St.  John's  Square,  and  the  former  is  designated  as 
"Mr.  Lispenard's,"  on  Ratzen's  map,  made  in  1767.  It  was 
proved  by  living  witnesses  that  both  of  these  tracts  had  been 
held  under  these  demises  continuously,  and  the  eight  acres 
down  to  the  present  time. 

Elias  Degrushe,  on  the  28th  of  February,  1750,  obtained  a 
lease  from  the  Church  of  the  three  lots  at  the  northwest  corner 
of  Warren-street  and  Broadway,  for  twenty-one  years.  The 
northerly  lot  extended  west  from  Broadway  twelve  hundred 
feet,  almost  to  the  bank  of  the  river.  The  description  in  this 
lease,  shows  that  the  farm  above  the  long  lot  was  not  laid  out 
in  building  lots ;  and  as  that  below  was  so  laid  out,  it  follows 
that  the  part  of  the  King's  Farm  leased  as  a  farm  to  Vanden- 
burgh,  was  wholly  upon  the  Dominie's  Bowery. 

The  possession  of  Degrushe  is  established  by  Maerschalck's 
map,  on  which  his  rope-wal]§  is  laid  down  as  occupying  the 
demised  premises. 

The  lease  to  Burnham  of  five  acres  at  the  northwest  part  of 
the  King's  Farm,  was  also  given  in  1750,  as  is  noticed  hereafter. 


30 


On  the  first  of  February,  1759,  a  lease  for  twenty-one  years, 
was  made  to  one  Marshall  for  four  fifths  of  an  acre,  called  the 
old  Bowling  Green,  being  the  same  parcel  which  is  laid  down 
on  Lyne's  map  of  1728,  and  Ratzen's  in  1767. 

On  the  25th  of  March,  1769,  these  premises  were  included 
in  a  lease  of  a  larger  tract  for  three  successive  terms  of  twen- 
ty-one years  each,  to  Samuel  Francis.  This  lease  was  sur- 
rendered to  the  corporation  in  1789,  and  a  large  part  of  the 
premises  conveyed  in  fee  the  same  year. 

A  lease  was  granted  to  George  Harison,  on  the  24th  of  Oc- 
tober, 1765,  of  a  tract  containing  twenty- four  lots,  between 
Greenwich-street  and  the  river,  and  situated  between  two 
streets  which  afterward  received  the  names  of  Harison  and 
Jay-streets,  for  a  term  of  ninety-nine  years.  This  tract  is 
shown  by  Ratzen's  map  to  have  been  occupied  by  Mr.  Hari- 
son in  1767. 

On  the  5th  of  May,  1768,  the  Church  demised  a  parcel  of 
more  than  two  and  a  half  acres  to  John  Keating,  for  sixty-three 
years,  extending  from  Provost  (Franklin)  to  Moore  (North 
Moore)  street,  and  from  Greenwich-street  eastwardly  to  Rut- 
ger's  land.  On  this  parcel,  some  of  the  demonstrations  were 
made  by  persons  asserting  the  Bogardus  title,  in  or  about  1785, 
which  resulted  in  an  expulsion  by  an  indictment  for  forcible 
entry  and  detainer,  as  hereafter  mentioned ;  and  all  the  de- 
mised premises  were  north  of  the  south  bounds  of  the  Domi- 
nie's Bowery. 

To  return  to  the  Church  Farm  generally.  A  lease  executed 
by  Adam  Vandenburgh  was  proved,  by  which  he  demised  to 
the  Church,  on  the  5th  of  March,  1752,  for  five  years,  the 
whole  farm  north  of  the  stockadoes,  excepting  the  four  acres 
at  the  northwest  part  of  the  farm,  adjoining  Sir  Peter  Warren's 
land,  which  had  been  leased  by  the  Church,  February  28th,  1750, 
to  William  Burnham,  as  before  mentioned.  The  lease  of  Van- 
denburgh contains  intrinsic  evidence  that  the  land  was  used 
and  cultivated  as  a  farm ;  and  all  the  demised  premises  were 
north  of  the  south  bounds  of  the  Dominic's  Bowery. 

On  the  17th  of  March,  1758,  the  corporation  demised  the 
Church  Farm,  (described  as  containing  seventy-seven  acres, 
excepting  about  three  acres  an(>  an  eighth  adjoining  the  pali- 
sadoes,)  to  Cornelia  Rutgers  and  Leonard  Lispenard  for  twen- 
ty-one years.  This  lease  was  surrendered  by  Lispenard,  as 
survivor,  on  receiving  the  long  lease  of  eight  acres  in  1764. 


31 


It  was  proved  that  in  1749,  an  ejectment  was  commenced  by 
Cornelius  Brower  against  the  corporation  of  Trinity  Church, 
for  the  recovery  of  a  farm  of  sixty-three  acres,  described  as  in 
the  possession  and  tenure  of  Adam  Vandenburgh,  and  which  is 
identified  as  the  farm  in  question.  The  plaintiff's  attorney  was 
the  historian,  William  Smith,  Esq. ;  and  the  suit,  after  being  at 
issue  two  years,  resulted  in  a  judgment  as  in  case  of  a  nonsuit. 
This  record  furnishes  evidence  of  the  possession  of  the  farm  by 
Vandenburgh,  as  tenant  of  the  Church. 

Another  suit  in  ejectment  for  the  same  premises,  described 
as  in  the  possession  of  Cornelius  Vandenburgh,  was  commenc- 
ed by  Judge  Smith,  in  favor  of  Brower,  against  the  corporation 
in  the  year  1757.  The  suit  was  tried  in  October,  1760,  and  a 
verdict  found  for  the  defendants.  This  is  the  same  suit  in  which 
the  lease  to  David  Seekers  was  produced,  as  heretofore  men- 
tioned. 

The  defendants  proved  their  actual  possession  of  the  Church 
Farm,  claiming  it  as  their  own,  from  1768  or  1770,  to  the  pres- 
ent time,  by  living  witnesses,  among  whom  were  Morgan  Lewis, 
formerly  governor  of  the  state,  Peter  Lorillard,  and  Peter  Em- 
bury. 

The  number  of  city  lots  leased  by  the  corporation,  down  to 
the  year  1764,  on  that  part  of  the  farm  in  which  the  complain- 
ants locate  the  Dominie's  Bowery,  was  from  one  hundred  and 
forty  to  one  hundred  and  fifty,  dispersed  in  every  direction  be- 
tween Warren-street  and  the  Rope-walk.  After  1 764,  the  leases 
multiplied  very  rapidly,  and  more  than  three  hundred  and  fifty, 
executed  prior  to  this  suit,  were  read  in  evidence  ;  generally  for 
twenty-one  years,  and  most  of  them  for  several  lots.  Nearly 
two  hundred  leases  of  a  later  date  were  proved.  And  evidence 
of  the  demise  of  more  than  a  thousand  city  lots  was  thus  exhib- 
ited, which,  with  the  large  tracts  leased  for  long  terms  of  years, 
yet  unexpired,  embraced  apparently,  every  foot  of  the  Dominie's 
Bowery. 

The  possession  of  the  Church,  and  their  claim  of  ownership 
in  fee,  exclusive  of  any  other  right,  from  1786  to  this  day,  was 
so  fully  proved  by  oral  testimony,  as  well  as  historical  and  doc- 
umentary evidence,  that  no  question  was  raised  upon  it  at  the 
hearing.  It  is  sufficient  to  say  on  this  head,  therefore,  that  the 
defendants  read  in  evidence,  three  hundred  and  ninety-four  con- 
veyances in  fee,  executed  by  their  corporation  from  1784  to  the 
hearing,  transferring  four  hundred  and  eighty  lots,  of  which 


32 


deeds  three  hundred  and  six  were  executed  before  the  com- 
mencement of  this  suit,  and  all  the  lots  thereby  conveyed  were 
within  the  Dominie's  Bowery. 

The  demises  and  conveyances  introduced,  also  proved  that 
the  corporation  had,  from  the  earliest  period,  always  treated 
that  part  of  their  farm  which  included  the  Dominie's  Bowery, 
in  precisely  the  same  manner  that  they  did  the  portion  of  their 
farm  lying  south  of  the  Bowery,  to  which  portion  their  title  has 
never  been  questioned. 

No  difference  is  perceptible  in  their  leases  or  conveyances 
of  the  one  or  the  other,  and  there  is  no  appearance  of  their  ever 
having  known  any  dividing  line,  or  any  distinction  between 
them. 

There  is,  therefore,  on  the  part  of  the  defendants,  an  unbroken 
current  of  evidence  of  the  highest  character,  proving  their  pos- 
session of  the  Church  Farm,  claiming  it  as  their  own,  from  1705 
to-1846.  There  can  be  no  stronger  testimony  of  ownership  in 
fee,  than  is  exhibited  in  the  records,  leases,  and  conveyances, 
produced  on  this  occasion.  The  extent  of  the  proof  and  its  im- 
mense force  would  be  marvelous,  in  the  case  of  a  title  owned 
by  an  individual.  Nothing  but  the  conservative  nature  of  the 
continued  existence  of  a  corporation  aggregate,  could  have  en- 
abled the  defendants  to  embody  such  a  mass  of  testimony,  ex- 
tending through  nearly  five  generations  of  men. 

But  it  is  contended  with  great  earnestness  that  the  chain  of 
the  defendants'  long  possession  was  disturbed  and  broken  in 
1784-5 ;  and  that  the  breach  destroys  the  force  of  their  plea. 

Without  entering  upon  a  minute  detail  of  the  testimony  rel- 
ative to  the  occupancy  of  Cornelius  Bogardus  in  1784,  and  the 
year  or  two  following,  it  will  suffice  to  state  the  result  in  brief 
terms.  The  lot  upon  which  he  lived,  was  before  the  Revolu- 
tion, possessed  under  a  lease  from  the  Church  for  twenty-one 
years,  which  expired  in  1782,  and  the  occupant  died  about  the 
time  of  the  peace.  This  lot  was  taken  by  the  city  to  enlarge 
Chambers-street,  before  1799.  John,  the  son  of  Cornelius,  is 
shown  to  have  lived  on  some  of  the  lots,  in  1784  and  1785.  In 
the  first  instance,  he  was  on  a  lot  leased  by  the  Church  in  1761, 
for  twenty-one  years,  and  then,  in  1782,  for  fourteen  years  to 
Christopher  Smith,  and  which,  in  1788,  the  Church  conveyed  in 
fee  to  W.  Alexander.  His  next  move  was  into  a  house  vaca- 
ted just  before  by  an  under-tenant  of  the  Church,  the  lease  not 
having  expired,  and  from  which  John  Bogardus  was  turned 


33 


out  by  the  Church  in  1786,  and  the  lot  by  them  conveyed  to 
James  Ryker  in  fee  in  1789. 

After  this,  John  Bogardus  lived  on  two  or  three  different  lots 
for  short  periods,  all  of  which  had  been  previously  rented  by 
the  Church  for  various  terms ;  and  as  his  father  left  the  city  in 
1786,  and  there  is  no  pretence  that  he  held  under  his  father 
after  that  time,  it  is  needless  to  trace  his  migrations. 

The  testimony  as  to  the  gravel-pit  is  unimportant,  for  it  is 
clear  that  it  was  not  on  the  Church  Farm  or  the  Dominie's 
Bowery. 

As  to  the  persons  put  in  possession  by  Cornelius  Bogardus, 
after  the  peace  of  1783,  they  are  five  or  six  in  number,  and 
their  possessions  appear  to  have  been  in  what  was  then  a  mere 
suburb  of  the  city,  at  and  about  Chambers-street ;  and,  so  far  as 
the  locations  were  designated,  it  is  shown  that  a  part  of  the 
lots  thus  taken  were,  or  had  been,  under  leases  from  the  Church, 
in  which  the  tenure  continued,  and  all  are  shown  to  have  been, 
very  soon  after,  in  their  undisputed  possession.  A  possession- 
house  and  fence  were  erected  by  one  of  the  Bogarduses,  toward 
what  is  now  Hudson  Square,  which,  it  appears,  brought  matters 
to  a  crisis ;  some  violence  ensued,  and  the  possessor  was  put 
out  by  summary  legal  process. 

The  defendants  produced  from  the  files  of  the  Supreme  Court 
the  record  of  a  conviction  on  the  27th  June,  1786,  in  a  forcible 
entry  and  detainer,  prosecuted  by  John  Keating  against  Cor- 
nelius Bogardus,  tried  before  the  chief  justice.  The  premises 
were  in  the  West  Ward,  and  evidently  a  part  of  those  demised 
to  Keating  in  176S.  From  the  same  files  were  produced  two 
records  of  judgments  in  trespass  on  lands,  in  favor  of  Keating, 
one  against  Bogardus,  and  the  other  against  Malcolm  ;  the  lat- 
ter, after  a  trial  before  the  chief  justice,  on  which  the  jury  gave 
£90  damages,  and  the  other  on  a  confession,  after  issue  joined, 
after  Malcolm's  trial.  These  records  undoubtedly  contain  the 
judgment  of  the  law  on  the  attempts  of  Bogardus,  to  intrude 
into  the  possession  of  the  Church  Farm. 

This  was  in  1786,  and  with  it  apparently  terminated  all  pos- 
session, or  color  of  possession,  of  any  part  of  the  premises,  by 
the  complainants'  ancestors. 

The  whole  subject  of  this  possession,  is  in  a  legal  view,  quite 
insignificant,  and  it  effected  no  change  in  the  rights  of  the  par- 
ties. On  the  one  side,  was  this  corporation,  having  for  eighty 
years  been  in  the  sole  possession  of  the  farm  by  their  tenants, 

C 


34 


and  thereby,  if  not  by  the  Queen's  grant,  having  acquired  a  per- 
fect title  against  all  the  world.  The  advance  of  the  city  had 
converted  the  extreme  south  part  of  the  Dominie's  Bowery  into 
city  lots.  The  part  thus  laid  out  was  doubtless,  as  in  the  sub- 
urbs of  our  growing  cities  of  the  present  day,  in  part  actually  oc- 
cupied by  tenants,  and  a  greater  part  lying  waste  in  uninclosed 
commons.  The  possession  of  the  latter,  it  is  hardly  necessary 
to  say,  continued  in  the  Church,  as  much  as  that  of  the  lots  ac- 
tually inhabited.  The  war,  and  the  long  occupation  of  the  city 
by  an  army  hostile  to  a  great  part  of  the  citizens,  unquestion- 
ably aggravated  the  waste  and  destroyed  the  inclosures  of  the 
Church  Farm.  When  the  city  was  evacuated  in  the  fall  of 
1783,  and  the  state  government  resumed  its  sway,  Cornelius 
Bogardus,  probably  believing  he  had  some  claim'to  this  farm, 
availed  himself  of  the  confusion  and  the  relaxation  of  civil  au- 
thority consequent  upon  the  change  of  government,  to  effect  a 
lodgment  upon  the  debatable  portion  of  the  farm,  which  was 
at  the  moment  neither  city  nor  country.  In  the  multitude  of 
their  leases,  and  still  more  in  the  uncertain  position  in  which 
the  Church  of  England  parishes  were  placed  by  the  new  order 
of  things,  this  lodgment  was,  in  its  humble  and  unobtrusive 
way,  of  two  or  three  years  duration.  And  it  is  possible  that 
the  popular  enmity  then  entertained  against  the  Church,  as  a 
seeming  branch  and  portion  of  the  expelled  regal  prerogative, 
weakened  the  arm  of  justice,  and  for  a  time  deterred  the  cor- 
poration from  invoking  its  aid. 

However  this  may  be,  the  possession  of  Cornelius  Bogardus, 
was  not  such  an  entry  as  to  disturb  or  turn  the  current  of  the 
legal  possession  of  the  Church.  His  individual  entry  was  that 
of  an  intruder,  and  the  entries  of  John  were  clearly  as  a  ten- 
ant under  the  Church.  A  landlord  does  not  lose  his  possession 
by  a  tenant's  yielding  the  same  to  an  adverse  claimant.  And 
the  result  of  the  attempt,  terminating  in  their  dispossession, 
without  an  effort  for  more  than  forty  years,  to  recover  the  land, 
is  conclusive  to  show  that  the  entry  was  a  trespass,  and  not  a 
legal  or  rightful  entry  upon  lands.  The  rule  of  law,  as  estab- 
lished for  two  hundred  years,  is,  that  an  entry  shall  not  be 
deemed  sufficient  or  valid  as  a  claim,  unless  an  action  be  com- 
menced thereon  within  one  year  after  the  making  of  such  entry, 
and  within  twenty  years  from  the  time  when  the  right  to  make 
such  entry  descended  or  accrued.  This  rule  is  a  part  of  our 
Revised  Statutes.    (2  R.  S.,  293,  §  7.) 


• 

35 


So  it  is  the  law,  and  has  been  made  a  part  of  our  statutes, 
that  the  occupation  of  lands  shall  be  deemed  to  have  been  un- 
der, and  in  subordination  to,  the  legal  title,  unless  an  adverse 
possession  of  twenty  years  is  shown. 

In  this  instance  there  was  a  legal  title,  and  over  a  century's 
possession,  in  the  corporation  of  Trinity  Church  and  its  grant- 
ors ;  and  except  the  proof  be  distinct  that  the  Bogarduses  did 
not  enter  into  the  lands  held  by  the  tenants  of  the  Church,  and 
that  they  did  hold  adversely  for  twenty  years,  their  entry  must 
be  deemed  to  have  been  under  the  title  of  the  Church. 

No  such  adverse  holding  is  claimed  for  them,  and  their  entry 
was  clearly  unavailing  in  respect  of  the  title. 

But,  further,  the  claim  now  is,  that  Cornelius  Bogardus  en- 
tered as  a  tenant  in  common  only.  So  far  from  any  such  in- 
ference being  deducible  from  the  complainants'  testimony,  it 
shows  an  entry  in  severalty,  claiming  it  for  himself  and  the  oth- 
er heirs  of  Anneke  Jans. 

Indeed,  the  whole  testimony  on  this  point,  as  introduced, 
showing,  if  any  thing,  a  hostile  entry  and  claim,  excluding  any 
right  of  the  Church,  is  directly  in  the  face  of  the  complainants' 
bill,  which  asserts  throughout,  that  the  defendants  have  been  in 
possession,  without  interruption,  from  1705  to  the  time  it  was 
filed,  and  makes  no  issue  whatever  upon  that  fact.  The  only 
approach  to  such  a  point  in  the  bill,  is  the  equivocal  expression 
applied  to  the  last  Cornelius  Bogardus,  "  taking  certain  of  the 
esplees  and  profits,"  which  relates  to  another  and  negative  al- 
legation in  the  plea,  which  is  yet  to  be  considered. 

The  negative  averments  in  the  third  subdivision  of  the  plea 
are,  first,  that  the  defendants  have  never  paid  or  accounted  to 
the  complainants  or  their  ancestors  for  any  rents  or  profits,  and 
have  never  admitted  that  they  were  bound  to  do  so,  either  in 
law  or  equity.  Second.  That  the  defendants  never  held  or 
possessed  the  lands  in  question,  or  the  rents  and  profits,  in  com- 
mon or  undivided  with,  or  as  trustee  of,  the  complainants  or 
their  ancestors,  and  have  never  admitted  that  the  latter  had 
any  estate,  share,  or  interest  in  the  lands,  or  the  rents  and  prof- 
its thereof. 

From  the  nature  of  these  allegations,  the  principal  burden  of 
proof  is  upon  the  complainants.  (2  DanielPs  Ch.  Prac.  224,  225, 
1st  ed.)  They  assert — the  defendants  deny  the  charge.  The 
matters,  if  they  exist,  are  peculiarly  within  the  knowledge  of 
the  comolainants.    They  are  oositive  facts.    All  the  defend- 


36 


ants  are  bound  to  do  is,  to  raise  a  presumption  from  their  acts 
in  respect  of  the  property,  its  use,  and  disposal,  that  no  such 
facts  exist,  and  the  presumption  must  prevail,  unless  met  and 
overcome  by  proof  on  the  other  side.  (See  1  Greenleaf's  Ev., 
§74.) 

For  the  whole  period  to  which  the  memory  of  aged  men  ex- 
tended, the  defendants  did  prove  distinctly  these  negative  al- 
legations. From  1784  to  this  day,  there  has  been  no  such  pay- 
ment, accounting,  admission  of  right,  or  holding  in  common. 
As  to  the  period  anterior  to  living  memory,  they  raise  a  vio- 
lent presumption  to  the  same  effect,  by  their  leases,  reserving 
the  whole  rents  and  profits  to  themselves,  and  demising  the 
whole  premises. 

On  the  other  hand,  there  is  not  a  scintilla  of  evidence  in  fa- 
vor of  the  complainants  on  either  of  these  propositions. 

The  charge  in  the  bill,  as  to  "  taking  certain  of  the  esplees 
and  profits,"  is  traversed  by  the  plea.  The  proof  as  to  the  oc- 
cupation and  receipt  of  rents  by  Cornelius  Bogardus  in  1784-5, 
as  I  have  already  observed,  was  that  of  a  hostile  and  tortious 
entry  upon  the  possession  of  an  owner  holding  in  fee,  and  not 
the  entry  of  a  tenant  in  common.  The  defendants'  title  was 
absolute  in  1784,  even  if  Queen  Anneahad  no  title  when  her 
grant  was  made,  (Clapp  v.  Bromagham,  9  Cowen,  530,  before 
cited) ;  and  if  Cornelius  Bogardus  then  took  any  "  esplees,"  he 
was  a  trespasser. 

An  objection  to  the  title  and  claim  of  the  Church  was  made 
on  the  ground,  that  by  the  act  of  June  27,  1704,  confirming  the 
charter  of  the  Church,  its  clear  income  from  lands  was  restricted 
to  £500  a  year,  and  the  income  from  the  Church  farm  before  the 
Revolution  exceeded  that  limit.  This  was  urged,  both  as  an 
obstacle  to  the  corporation's  holding  adversely,  lands  producing 
an  excess  over  their  legal  income,  and  as  showing  that  the  sur- 
plus beyond  £500,  was  an  accumulated  fund  in  the  hands  of 
the  Church,  which  they  had  no  right  to  retain,  and  which,  as 
trustees,  they  are  bound  to  account  for  to  the  complainants. 

On  the  other  hand,  the  defendants  say  the  act  of  1704  was 
repealed  by  the  legislature  by  the  law  relative  to  the  Church, 
passed  April  17th,  1784,  (1  Jones  and  Varick's  Laws,  128). 

The  act  of  1704  is  undoubtedly  repealed  in  express  terms  by 
the  act  of  1784.  Whether  the  last  section  of  the  latter  stili 
leaves  the  Church  subject  to  any  of  the  restrictions  imposed  by 
the  former,  it  is  unnecessary  to  decide  ;  for  there  are  two  short 


37 


and  conclusive  answers  to  the  objection,  without  reference  to 
the  repeal  of  the  limitation.  First,  the  Church  acquired  the 
title  to  the  King's  Farm,  by  the  letters  patent  in  1705,  when  the 
whole  farm  was  not  worth  as  much  as  one  city  lot  of  twenty- 
five  by  a  hundred  feet,  in  almost  any  part  of  it  would  sell  for 
at  this  moment.  Nor  is  it  probable  that  the  most  visionary 
speculator  of  that  era,  expected  to  live  to  see  the  day  when  the 
King's  Farm  would  yield  a  net  income  of  £500  a  year.  In 
1704,  the  Church  leased  the  farm  for  five  years  at  £30  a  year. 
It  is  undeniable,  therefore,  that  the  grant  by  Queen  Anne  was 
clearly  within  one  tenth  part  of  the  limitation  imposed  by  the 
act  of  1704. 

Now  it  scarcely  needs  an  observation  to  show,  that  the  acci- 
dental increase  in  the  income  of  a  corporation  derived  from  its 
vested  estates,  to  a  point  beyond  what  its  charter  prescribes, 
can  not  have  the  effect  to  divest  its  title  in  such  estates,  or  in 
any  portion  of  them.  The  excess  of  income  in  such  a  case 
would  not  belong  to  the  grantor  of  the  property,  much  less  to 
one  claiming  adversely  both  to  the  grantor  and  to  the  corpo- 
ration. 

Secondly,  if  when  the  Church  acquired  the  title,  whether  it 
were  in  1705,  or  at  the  end  of  sixty  years  from  their  entry  un- 
der the  grant,  the  income  were  in  fact  more  than  £500,  no  pri- 
vate persons  could  take  advantage  of  the  fact.  It  is  a  question 
between  the  corporation  and  the  sovereign  power,  in  which 
individuals  havfe  no  concern,  and  of  which  they  can  not  avail 
themselves  in  any  mode  against  the  corporation.  This  was  so 
decided  in  regard  to  this  Church,  in  Humbert  v.  Trinity  Church, 
in  the  highest  court  in  this  state,  (24  Wend.,  587,  604,  629) ; 
and  the  same  objection  was  made  and  overruled  in  the  case  of 
Harpending  vs.  The  Dutch  Church,  (16  Peters,  492-3).  And 
see  Vernon  Society  v.  Hills  (6  Cowen,  23).  The  same  point 
was  decided  in  the  Supreme  Court  of  Pennsylvania,  in  Baird 
v.  The  Bank  of  Washington  (11  Serg.  and  Rawle,  418)  ;  and 
by  the  Court  of  Appeals  of  Virginia,  in  The  Banks  v.  Poitiaux, 
(3  Randolph's  R.,  136). 

The  notion  of  a  trust  for  the  complainants,  as  to  the  supposed 
excess  of  rents  beyond  the  corporate  capacity  of  the  Church, 
is  founded  on  the  assumption  that  the  complainants  have  made 
out  that  the  Church  has  all  the  while  been  holding  the  farm  as 
a  tenant  in  common  with  them.  If  they  have  succeeded  in 
establishing  the  latter  proposition,  they  need  no  aid  from  the 
limitation  of  the  income  of  the  Church.    Their  right  to  relief 


38 


would  rest  upon  much  higher  ground.  If  they  have  failed  to 
show  the  holding  in  common,  their  assumption  of  a  trust  as  to 
the  excess,  is  left  without  any  foundation  for  its  support 

The  result  of  my  investigation  is,  that  the  defendants'  plea 
is  fully  sustained  in  all  its  points  and  propositions ;  and  as  the 
law  of  the  cause  has  been  decided  in  our  court  of  last  resort, 
it  is  an  entire  and  effectual  bar  to  the  complainants'  suit,  and 
their  bill  must  be  dismissed. 

Before  leaving  the  case,  I  will  recur  to  one  other  view  which 
was  discussed  on  the  argument.  If  it  had  been  proved  that 
Cornelius  Bogardus  entered  lawfully  and  in  his  own  right  as 
tenant  in  common  in  1784,  and  continued  his  possession,  as  is 
claimed  by  the  complainants,  they  could  not  maintain  their 
claim  to  the  lands  in  question. 

I  have  already  referred  to  the  law  on  this  subject,  (and  it  was 
the  law  before  the  King's  Farm  was  cultivated  by  Europeans), 
which  renders  such  an  entry  unavailing  for  any  purpose,  un- 
less it  be  followed  up  by  a  suit  for  the  recovery  of  the  land, 
within  the  prescribed  period  limiting  such  actions.  But,  inde- 
pendent of  that  rule  of  law,  the  complainants  are  doubly  barred 
from  any  relief  founded  upon  the  entry  of  their  ancestors  in 
1784 :  First,  because  the  Church,  irrespective  of  actual  title ;  by 
their  possession  of  the  farm  for  seventy-eight  years,  claiming  it 
as  their  own  in  fee-simple,  exclusive  of  any  otfeer  right,  under 
a  grant  in  writing ;  had  acquired  a  valid  title  to  the  farm  against 
all  the  world.  It  would  be  a  waste  of  time  to  cite  any  of  the 
very  numerous  authorities  which  sustain  this  proposition. 
Against  such  a  title,  the  entry  of  Cornelius  Bogardus,  was  of 
no  more  consequence  than  would  have  been  the  entry  of  an 
entire  stranger  to  the  blood  of  Anneke  Jans.  If  he  had  suc- 
ceeded in  retaining  his  foothold,  so  as  to  have  driven  the  Church 
to  an  ejectment,  they  would  have  recovered  against  him  inevita- 
bly, on  proof  of  the  letters  patent,  and  their  long  possession  and 
claim  under  the  same.   (Smith  v.  Lorillard,  10  Johns.,  338, 339.) 

Secondly.  Leaving  wholly  out  of  view  the  possession  prior 
to  178G  ;  from  that  time  to  the  commencement  of  this  suit, 
which  was  forty-four  years,  the  Church  have  undeniably  been 
in  the  actual  visible  possession  of  the  premises,  claiming  the 
whole  in  fee,  under  the  letters  patent,  exclusive  of  any  other 
right,  and  in  direct  hostility  to  the  complainants'  claim.  This 
is  another  full  and  oerfect  bar  to  that  claim. 


39 


In  answer  to  these  points,  it  is  said  that  they  do  not  support 
the  plea,  which  relies  on  an  unbroken  possession  from  1705  to 
1830. 

It  is  to  be  borne  in  mind  that  the  plea  was  adjudged  to  be 
valid  in  law  by  the  Court  for  the  Correction  of  Errors,  not  be- 
cause it  set  up  an  adverse  possession  of  one  hundred  and  twen- 
ty-five years,  but  because  the  Corporation  had  maintained  such 
possession  for  a  period  long  enough  to  bar  a  writ  of  right.  (See 
the  report  of  the  plea,  Bogardus  v.  Trinity  Church,  4  Paige, 
178,  and  15  Wend.  111.)  This  limitation,  in  1705,  was  sixty 
years.    In  1788  it  was  reduced  to  twenty- five  years. 

The  defendants,  in  support  of  their  plea,  are  bound  to  prove 
only  its  substance,  and  to  such  an  extent  as  will  maintain  the 
bar  which  it  interposes  to  the  suit.  To  illustrate  this  proposi- 
tion, I  will  suppose  a  bill  filed  at  this  time,  relative  to  a  trust 
created  in  1830,  to  which  the  trustee  pleads,  that  for  fifteen 
years  last  past,  he  has  done  no  act  or  admitted  any  thing  in 
respect  of  the  alleged  trust,  and  that  the  complainant  is  barred 
by  lapse  of  time,  by  the  provisions  of  the  Revised  Statutes. 
The  limitation  to  such  suits  by  those  statutes,  is  ten  years  ;  and 
if,  on  an  issue  taken  upon  such  a  plea,  it  should  appear  that  for 
ten  vears  before  the  suit,  there  had  been  no  act  or  recognition 
respecting  the  alleged  trust,  I  apprehend  that  the  plea  would 
be  sustained  beyond  a  doubt. 

So,  in  this  case,  if  the  defendants  have  shown  that  such  a 
state  of  facts  relative  to  this  farm,  as  is  set  up  in  the  plea,  con- 
tinued for  more  than  sixty  years  before  the  year  1784,  and 
that  it  continued,  also,  for  more  than  forty  years  immediately 
prior  to  1830,  it  is  clear  to  my  mind  that  they  have  sustained 
the  substance  of  their  defence,  and  have  doubly  sustained  it. 

In  concluding,  justice  to  the  defendants  requires  me  to  state, 
that  the  delay  which  has  occurred  since  the  argument  of  the 
cause  before  me  as  assistant  vice-chancellor,  has  not  been 
owing  in  the  slightest  degree,  to  any  difficulty  which  it  pre- 
sented to  my  mind.  When  the  argument  was  closed,  it  was 
made  known  that  there  was  a  defect  of  parties,  arising  from 
the  death  of  some  of  the  claimants.  The  cause  necessarily 
stood  over,  to  have  the  proper  parties  brought  into  the  suit. 
Immediately  on  its  being  revived,  the  complainants'  counsel 
applied  to  have  the  decision  suspended,  until  he  could  move 
the  court  for  leave  to  introduce  further  testimony.  When  this 
motion  was  disoosed  of,  I  had  ceased  to  be  the  assistant  vice- 


40 


chancellor,  and  there  was  no  opportunity  to  submit  the  cause 
to  me  as  vice-chancellor,  until  the  close  of  the  last  January 
term.  A  long  illness  immediately  succeeding,  and  an  unex- 
ampled pressure  of  business  in  the  court  ever  since,  have  de- 
layed my  investigation  of  the  cause,  till  the  last  month  of  my 
official  term. 

And  now  that  I  have  been  enabled  to  examine  it  carefully, 
and  with  due  reflection,  I  feel  bound  to  say,  that  a  plainer  case 
has  never  been  presented  to  me  as  a  judge.  Were  it  not  for 
the  uncommon  magnitude  of  the  claim,  the  apparent  sincerity 
and  zeal  of  the  counsel  who  supported  it,  and  the  fact,  (of  which 
I  have  been  oftentimes  admonished  by  personal  applications  on 
their  behalf.)  that  the  descendants  of  Anneke  Jans,  at  this  day, 
are  hundreds,  if  not  thousands,  in  number ;  I  should  not  have 
deemed  it  necessary  to  deliver  a  written  judgment  on  deciding 
the  cause. 

A  rooted  dislike  to  clothing  any  eleemosynary  institution 
with  either  great  power  or  extensive  patronage,  and  a  settled 
conviction  that  the  possession  by  a  single  religious  corporation, 
of  such  overgrown  estates  as  the  one  in  controversy,  and  the 
analogous  instance  of  the  Collegiate  Dutch  Church,  is  perni- 
cious to  the  cause  of  Christianity ;  have  disposed  me  to  give 
an  earnest  scrutiny  to  the  defence  in  this  case ;  as,  in  the  in- 
stance of  the  Dutch  Church,  they  prompted  me,  in  my  capacity 
of  counsel,  to  more  zealous  efforts  to  overthrow  their  title  to 
the  lands  devised  by  Jan  Haberdinck.  But  the  law  on  these 
claims  is  well  settled,  and  it  must  be  sustained,  in  favor  of  re- 
ligious corporations  as  well  as  private  individuals.  Indeed,  it 
would  be  monstrous,  if,  after  a  possession  such  as  has  been 
proved  in  this  case,  for  a  period  of  nearly  a  century  and  a  half, 
open,  notorious,  and  within  sight  of  the  temple  of  justice  ;  the 
successive  claimants,  save  one,  being  men  of  full  age,  and  the 
courts  open  to  them  all  the  time,  (except  for  seven  years  of 
war  and  revolution) ;  the  title  to  lands  were  to  be  litigated,  upon 
a  claim  which  has  been  suspended  for  five  generations.  Few 
titles  in  this  country  would  be  secure  under  such  a  regime,  and 
its  adoption  would  lead  to  scenes  of  fraud,  corruption,  foul  in- 
justice, and  legal  rapine,  far  worse  in  their  consequences  upon 
the  peace,  good  order,  and  happiness  of  society,  than  external 
war  or  domestic  insurrection. 

The  bill  must  be  dismissed,  with  costs. 

(A  true  copy.)  GEO.  H.  E.  LYNCH, 

Vice-chancellor's  Clerk. 


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